THE BILATERAL AGREEMENTS ON INTERCOUNTRY ADOPTION SUBSCRIBED BETWEEN SPAIN AND ROMANIA, PERU, COLOMBIA, ECUADOR, BOLIVIA AND THE PHILIPPINES^*
Nuria GONZÁLEZ MARTÍN^**

Original Text (Spanish) PDF

SUMMARY
I. Introduction. II. Bilateral agreements on intercountry adoption subscribed by Spain. III. Conclusion.

I. INTRODUCTION

The principle of protection of the child has become a compulsory reference, with respect to international private law, since a series of already generalized practices have taken place regarding internationalization of the condition of the child,¹ for it is imbued with common practices where child custodianship and visitation are claimed, for example, as well as complaints for the payment of alimony, complaints for intercountry child kidnapping, child trade, and intercountry adoption, are claimed basically.

The defense of the child’s best interest child through the principle of child protection is, and should be, the core piece in the promotion of the child’s rights. This was expressed since 1989 in the United Nations Convention on Child’s Rights, and has been assumed by 192 States which are already signatories of the convention, reaching a cuasi universal ratification.²

When we refer to intercountry adoption at present, we always invoke the social phenomenon character,³ of a typical situation, maybe moved by those sources in which adoption did not have another raison d’etre than the need of continuing and perpetuating the family lineage or because of succession reasons, among others.⁴ We then find ourselves before a situation that sets the change from "the form of perpetuation of the family… to a system of protection".⁵

At the beginning of the 21st century, we add the concept of globalization and/or integration to the concept of pluriculturality; this way, the new concept of family emerged together with a new internationalized family Law.

This does not mean that an international family Law was not previously conceived, but that given the decanting process across the borders that we witness nowadays, this social, legal, economic and political phenomenon shall be reconsidered.

Adoption is not strange to this context, for its internationalization turns into one of the phenomena that catches more the specialists’ attention. We are referring to a crucial aspect in private international law, which is connected with a variety of legal regulations; we are referring to a transnational adoption, and thus, intercultural and interracial.

The 20th century was characterized for being the century of childhood; the 21st century shall be able to outstand, in the near future, as the century of international legal protection of minors.

The international community through instruments such as international agreements, and the States through their domestic administrative legislation and practice, shall focus, unconditionally, on the incorporation of all those elements that assure a most preferential goal, which shall be working unanimously in favor of the minors.

Since in 1995 Spain subscribed and ratified the Convention of The Hague on Protection of Children and Co-operation in respect of Intercountry Adoption, of May 29, 1993 (1993 Convention of The Hague),⁶ a series of legal events have been taking place, which have been decisive to review the practice of intercountry adoption. And here we are referring not only to the 1/1996 Legal Protection to the Child Act, that modifies article 9.5 of the Civil Code, nor to the autonomous laws reformed to that effect, but also to the various protocols or bilateral agreements Spain has signed on intercountry adoption, as an instrument of international cooperation, foundation and object of international private law.⁷

II. BILATERAL AGREEMENTS ON INTERCOUNTRY ADOPTION SUBSCRIBED BY SPAIN

1. Instruments of cooperation

Conventional bilateral Spaniard practice on procedural cooperation agreements and those of recognition and execution of foreign resolutions, has been quite profuse in the last years.

Given this, Spain has concluded a diversity of bilateral agreements⁸ with: Germany (November 14, 1983),⁹ Austria (February 19, 1984),¹⁰ Brazil (November 14, 1989),¹¹ Bulgaria (May 23, 1993),¹² Colombia (May 30, 1908),¹³ Czechoslovakia (currently into force with the Czech Republic and the Slovakian Republic, since May 4, 1987),¹⁴ China (May 2, 1992),¹⁵ France (May 28, 1969),¹⁶ Israel (May 30, 1989),¹⁷ Italy (May 22, 1973),¹⁸ Morocco (May 30, 1997),¹⁹ Mexico (April 17, 1989),²⁰ Romania (November 17, 1997),²¹ Switzerland (November 10, 1896), Uruguay (November 4, 1987)²² and the USSR (currently into force only for Russia, since November 26, 1990).

This time we shall not refer to the bilateral agreements abovementioned, but to another kind of agreements subscribed in the light of article 39.2 of the 1993 Convention of The Hague, which have not been extensively approached by the most recognized doctrine in this matter. We are referring to the agreements or protocols on intercountry adoption, that emerge with certain margin of reluctance or distrust by the intellectuals in this subject, and that we intend, through this work, to rescue and outstand their value and/or suitability.

Over the last few years, Spain started bilateral negotiations on intercountry adoption, concluding a series of agreements oriented specifically to the legal problems inherent to it.²³ In fact, the 1993 Convention of The Hague²⁴ establishes the guarantees that shall be fulfilled and the means of coordination between the central authorities, in which we find the subscription of bilateral protocols or agreements on intercountry adoption.

These are agreements with the initiative of one or both of the Contracting States involved, which intended to give a more secure, transparent, and cooperative framework to intercountry adoption. These agreements contribute, as well, to a possible solution to child trade, always by means of cooperation.

Regarding Spain, the public office in charge basically of channeling this kind of initiatives, either by diplomatic means, informal meetings, etcetera, is the Ministry of Labor and Social Matters, which shall finally sign these agreements or at least promote them having another ministerial office to sign it, which is normally the Ministry of Foreign Affairs.

The premise from which we depart is the "Copernican shift" intercountry adoption has had at present. Its evolution and proliferation²⁵ has caused so huge and various problems, of such different nature to those projected decades ago, that they have not been solved by the international regulations prior to the 1993 Convention of The Hague.²⁶ The framework to which the Convention of The Hague of November 15, 1965 on authorities’ jurisdiction, applicable law, and recognition of decisions on adoption, was designed, changed radically.²⁷

The 1993 Convention of The Hague had a "publishing" spirit²⁸ reflected, for example, in that previous administrative phase. It was also created with a spirit of attraction of the children’s countries of origin that were not even Member States of the Conference of The Hague the moment the Convention was subscribed. This way, interacting was encouraged, almost for the first time, between States that received children and their countries of origin. Intercountry adoption, from that moment, was conceived as a worldwide, social phenomenon, characterized by "the immigration of children across great geographical distances from one society and culture to a very different social and cultural environment".²⁹

The need of cooperation between the countries of origin and of destination was based on efficient labor relations, on mutual respect and on the observance of professional and ethical high standards,³⁰ definitely sealed the 1993 Convention.³¹

Mexico is part of the list of countries considered of origin, senders of children, and Spain belongs to the list of those countries viewed as receiving children since the nineties.

Spain has become a country with a strong increasing demand of intercountry adoptions, what has encouraged a legal regulation on this issue, more and more exhaustive, relating with the most recent international agreements in this subject.

Given the interest both countries show in protecting childhood, this work would be completed if it was carried out, given my interest as a researcher in Mexico, a proposal or implementation of a complementary protocol or bilateral agreement between Mexico and Spain on intercountry adoption, in accordance with article 39.2 of the 1993 Convention of the Hague, that would clarify specific aspects in the practice, that are not covered by the main principles of the 1993 Convention of The Hague. However, given the length of this essay we consider it would not be suitable, but it should be said that this study will soon be published.

Now that this point was cleared up, we shall point out the relevance of the lack of information about intercountry adoption; therefore, there is an imminent need to increase cooperation among the public administrations involved, in order to improve the information available on childhood in general, and adoption particularly.

Having a communication system allows sharing valid and reliable information, and enables also, child protection policymaking over the basis of the knowledge of the needs and problems that define certain situation, in this case, intercountry adoption, as well as approaching other issues of such relevance as fulfilling the compromises assumed with the ratification of intercountry agreements of protection to the child.

As the agreements to which article 39.2 of the 1993 Convention of the Hague establishes, the Spaniard administration has subscribed interstate bilateral protocols or agreements on intercountry adoption with Romania, Peru, Colombia, Ecuador, Bolivia and Philippines³² which include, as one of their aims, the creation of a cooperation system between the Signatories that assures in the processes of adoption, the full eradication or at least the prevention of kidnapping, traffic, trade and selling of children. These protocols contain, as well, a series of communications between authorities in order to have a precise information that does not differ, and that shall not differ from the established in the 1993 Convention of The Hague.

In accordance with this, and somehow as a justification for the remains of this article, just as we appointed above, Mexico was the first country to subscribe and ratify the Convention of The Hague, given its interest as a country that issues children. Then, we shall ask ourselves, why do not we implement measures, as a complementary protocol or interstate bilateral agreements, in order to mitigate the problem that raises before intercountry adoptions that are not clear enough, looking always for guarantees aiming to eradicate traffic of minors?

The thing is to create a mutual trust environment among the authorities involved, in this precise case: Mexico and Spain. As we said before, this will be left for another study that will soon be published.

With the Convention of 1993, there is a cautious international agreement, respectful towards domestic law of the countries that are part of it, an informative agreement, transparent, of cooperation and distribution of "responsibilities", but we do not stop insisting and pointing out that these bilateral protocols or agreements are not within the channels of protection established in the 1993 Convention of The Hague.

2. Context

Intercountry adoption in 2004 is still a social phenomenon, with a notorious progress in the Spanish society. In fact, statistics show that Spain is one of the main countries receiving children worldwide, being the destiny of around 17 percent of the children adopted in the world.³³

With such a reality, there is the need to open the possibility of adopting in new countries,³⁴ or simply of improving the quality of adoptions made with countries that already have such a tradition with Spain, making their performance regarding intercountry adoption more efficient and fast.

On the one hand, we refer to quality when we intend to make adoptions with all the guarantees and the superior interest of the child, in a theme as delicate as intercountry adoptions. This is established in article 39.2 of the 1993 Convention of The Hague, as it expresses that every Contracting State may enter into agreements with one or more other Contracting States, with a view to improving the application of the Convention in their mutual relations, always heading towards a transparent intercountry adoption, that is secure, agile and efficient.

Likewise, on the other hand, in quantitative terms -as we shall see in the protocols or agreements we will analyze in the following lines- they entail a great significance for they are countries of origin of children with a significant allocation activity.

The latter statement could be proven, with respect to Spain, through the following numbers: Spain, as a receiving State, concluded in 2001 a total of 3,428 adoptions. If we gather the number of adoptions made in 2001 by continent, we find that with Latin America, Spain made 721 adoptions;³⁵ with Eastern Europe, 1,569³⁶ and with Asia a total of 1,107 adoptions.³⁷

From all this, we can infer the need of reaching agreements like those signed by Spain with six States of origin of the children, in which the quantitative terms are measured, without the qualitative factor being ignored, of course. If these protocols’ legal nature differ from one State to another,³⁸ it might be not the most relevant data in this moment. Though, it is indeed important for these agreements to fulfill a goal of administrative cooperation that expedites and makes more agile, as we commented, the conclusion of intercountry adoption. These shall be the guidelines of child protection.

3. Notes about their legal nature

The precept that rules the possibility of creating this type of agreement is mentioned in article 39.2, the 1993 Convention of The Hague,³⁹ which introduces the possibility of subscribing future agreements to encourage the execution of the 1993 Convention, as a core factor to guarantee the effective normative harmonization that underlies the elaboration of conventional norms.⁴⁰

Article 39.2 intends to respect the traditional links and the historical, geographical, and other factors that bind certain Contracting States.⁴¹

The agreements allowed by paragraph 2, can only derogate the dispositions covered by articles 14 to 16 and 18 to 21 (regarding the procedure’s conditions) and this interdiction is explained because the prospective international instruments shall not affect the fundamental rules of the agreement.

On the other hand, but always regarding the agreements to which article 39.2 refers, its coming into force in one of the States Parties of the 1993 Convention of The Hague does not authorize the other States Parties to make the declaration covered by article 25 of this Convention.⁴²

So, the last phrase of paragraph 2, compels the Contracting States which have concluded such agreements, to transfer a copy to the depositary of the Convention, so that he can carry out what article 48 clause e) establishes.⁴³ The latter is particularly important for it allows third States Parties to carry out the declaration covered by article 25, according to which they shall not be compelled by the agreement to acknowledge the adoptions made according to such future agreements.

Article 25 is connected with article 39.2 and both dispositions appoint, together, the compromise reached between the supporters and adversaries of the possibility of future agreements among States Parties on subjects regulated by the agreement: 1) Article 39.2 authorizes these agreements, within certain limits, but the rest of the Contracting States have the right to declare before the depositary, that they shall not recognize, according to the agreement, the adoptions derived from those agreements; 2) Article 25 demands a positive performance of the third State Party, therefore, in case no declaration is made, there shall be a conventional obligation to recognize the adoptions made in accordance with the agreements authorized by paragraph 2, of article 39.⁴⁴

The declaration’s effect, covered by Article 25, states that the third State Party shall not be bound to recognize adoptions made in accordance with an agreements concluded by application of Article 39 paragraph 2. None the less, it is not forbidden to recognize them in accord with the domestic law of the Contracting State that made the declaration.⁴⁵

On the other hand, even when it is not expressly stated, the declaration may be denounced in any moment by the third Contracting State that made it, notifying this to the depositary of the agreement so that he could as well make the concerning notification covered by article 48, clause d).⁴⁶ Since that moment, the third Contracting State shall be bound to that agreement, to recognize the future adoptions made in accordance with these agreements, but the agreement does not mention anything regarding the subsequent ones.

Article 39.2 in fine does not establish a deadline for the transference of the copy, neither any punishment for the possible breach of the obligation imposed to the Contracting States that subscribe those prospective agreements.

This way, we can infer that qualifying and analyzing the legal nature of the agreements, whose aim is to level the demographic and social-economic imbalances of the world, is not an easy task.

The Spanish doctrine has not been profuse in analyzing the various protocols or agreements subscribed among the six abovementioned States. Actually, we notice that the polemic around, precisely, the qualification of such agreements, has still not been overcome. Among the different views expressed by the doctrine, we find those which catalogue some of them as real intercountry agreements, executive or administrative agreements and/or non-normative agreements.

From the analysis of each of these agreements we shall, perhaps, reach conclusions divergent from each other. Each one of these protocols, agreements, pacts, etc., might have a different legal nature, with an obviously different scope.

What is true, is that article 39.2 of the 1993 Convention of The Hague does not specify the legal nature such agreements shall have, whether they shall be international agreements, per se, administrative agreements, non-normative agreements, or any other. It mentions the need to respect traditional, historical and geographical links that may relate certain Contracting States with each other, reason why it would be ideal to subscribe, for example, agreements that contribute to the protection of their children.⁴⁷

In exchange, the drafts stop, expressly, in the conditions those agreements must fulfill, in order to be considered as elaborated in accordance with article 39.2. These conditions are:

1) They shall be subsequent to the coming into force of the 1993 Convention of The Hague in the participant States;

2) Their purpose shall be encouraging the application of the latter in the reciprocal relations; and

3) The duty to transfer these agreements to the depositary of the agreement so that he could promote them in accordance with article 48 e) of the same legal body, is established in an imperative way (without specifying that it is for its validity or for merely informative effects).⁴⁸

Now, we shall go part by part, in order to see, from our perspective, the scope and legal nature of these protocols or agreements.

On the first place, we have to compile the most significant information from the doctrine to which the analysis of the agreements we commented refers.

We shall start by analyzing the manifestations included in the explanatory reports of the 1993 Convention of The Hague and in the various working documents. From there, we underline a significant issue, that the agreements, to which article 39.2 of the 1993 Convention of The Hague refers, can only derogate the dispositions covered by articles 14-16, 18-21 (regarding the procedure) of the 1993 Convention of The Hague, because the future international instruments shall not affect fundamental rules of the Convention.⁴⁹

From this literal statement, not of the Convention but of the explanatory reports, we could extract a convincing argument just like the experts that witnessed and worked in the different preparatory commissions of the 1993 Convention of the Hague had in mind the international instruments, international agreements, treaties subject to international law. It could be inferred from the legislator’s "spirit" when wording article 39.2, what the will in the qualification of these agreements had been.

But here we do not want to infer nor foresee something that does not express the law, as such, literally. The practice carried out in this direction since 1993 might help us clarify the will of locating them, and thus, being able to give them the dimension they need with respect to the rights and duties they implicitly entail.

Following the comments extracted from the explanatory reports, we shall underline, on the other hand, the opinion that "the second paragraph of article 39 represents a significant restriction of the rule of the first phrase of article 41.1, of the United Nations Vienna Convention on the Law of the Treaties, which recognizes, as a starting point, the freedom of every State to subscribe multilateral or bilateral treaties derogating a multilateral existent one".⁵⁰

Actually, the 1993 Convention of The Hague does not contain any disposition about the relationship with prospective agreements about subjects ruled by it, for example, regarding a new General Convention on Protection of Children, which in such case, the general rules of the Law of the treaties shall be applied under the light of article 3 of the Vienna Convention on the Law of the Treaties.⁵¹

If we interpret both "restrictions" (article 41.1 and 30 of the Vienna Convention) in the negative sense, discarding the suitability of qualifying such agreements as treaties subject to international law, international treaties, the following consideration would be given in the sense that the will of the signatories shall determine their scope.

Marina Hernando, when referring to the protocols or agreements subscribed with Spain on intercountry adoption, mentions that although these protocols⁵² do not have:

Legal consequences among the States, in case of not fulfilling them —since they are not conventions nor treaties but only protocols or letters of intent— it is clear that foreign institutions that subscribe them have the absolute will of demanding the intervention of the Spaniard administration in all the expedients of adoption. Through this, the same purpose they would follow if they were conventions, is fulfilled.⁵³

In other words, in every case, the consideration as a true convention, as a true international agreement depends on the signatories’ will to be bound and compelled to it. We are talking here of an administrative decision in which the signatories’ will shall truly determine if it ought to be conceived as an authentic international treaty.⁵⁴ A persistent observation, without aiming to take away credibility from the administrative decision, is precisely that not all of them have identical content, for this reason there is a decisive will to place them as treaties subject to international law.

These administrative decisions shall be international treaties whenever the agreement derives from a previous treaty subscribed according to the constitutional dispositions, v. g. the 1993 Convention of The Hague. These are true treaties in which the process of conclusion is simplified, substituting the full powers of the Minister of Foreign Affairs, with a simple credential of the department concerned, understanding that the authorization to negotiate a framework-treaty, granted by the Council of Ministers, is implicitly extended to its development and execution agreements that, once subscribed, shall be immediately communicated to the chambers.⁵⁵

If the administrative decision is conceived (the will to conceive it) as a true international agreement, it might entail two advantages relevant in practice: in the negotiation stage of the agreement, the authorization to negotiate might be simplified, just as we mentioned, by means of the credential of the concerning Minister; and in the stage of granting the consent, the authorization of the administrative decision might be qualified as implicitly or tacitly understood, in the one granted by the framework-treaty developed by it.⁵⁶

Finally, we put aside the legal nature of such protocols or agreements, as non-normative agreements, invoking their particular features when qualifying them, without intention of being submitted to international law neither attributing responsibilities for the lack of fulfillment and even, and most important, unwilling to acquire a real compromise even with the usage of more agile, more practical formulas.⁵⁷

Calvo Babío shows concern about the fact that the solution might have consisted on transforming the protocols into real bilateral treaties, subscribed within the scope of article 39.2 of the 1993 Convention of The Hague, in case they are subscribed with Contracting States. Such "reconversion shall not subtract flexibility to the instruments, since the experience of the Ministry of Labor and Social Matters reveals us that they are not often modified, except if an appendix regarding flexible modification to the most susceptible cases of variation, is added".⁵⁸

Definitely, the agreements subscribed with Romania, Peru, Ecuador and Colombia, are the most suited means to establish an administrative cooperation which facilitates, undoubtedly, the constitution of intercountry adoptions among the States parties. Their legal nature is not that of an authentic international agreement or treaty, not only because they have not been published by the Official State Bulletin, but because their contents reveal that they are administrative agreements among the bodies of the respective administrations, which practically focus in settling the procedure to follow for the adoption of children, residents or nationals, depending the case, with respect to their countries of origin.⁵⁹

On the other hand, when displaying the three conditions demanded by article 39.2 of the 1993 Convention of The Hague to allocate and classify this type of agreements, always taking into account that the legislator, when wording the referred article, meant to refer to international agreements, international treaties, "treaties subject of international law"; we conclude that neither the Philippines nor Bolivia fulfill all the requirements, therefore they shall not be considered international treaties.⁶⁰ We shall see that:

1) Philippines’ agreement fulfills the condition of being an agreement subsequent to the coming into force of the 1993 Convention of The Hague (like the other State party: Spain); Bolivia does not fulfill this condition because its agreement is previous to the coming into force of the 1993 Convention of The Hague;

2) Philippines and Bolivia do fulfill the purpose of enhancing the application of the latter in the reciprocal relationships;

3) Philippines and Bolivia do not compel to transfer a copy of the agreement to the depositary of the 1993 Convention of The Hague; they only refer to its coming into force.

Perhaps, only the last of the agreements subscribed with Spain, the one concerning The Philippines, might be fulfilling (with will and if we interpret that along with its publication in the Official State Bulletin, its deposit is transferred) the requirements covered by article 39.2 of the 1993 Convention of The Hague, there would not be room, then, for a "reconversion" just as Calvo Babio explained. However, there is still a position that qualifies it not as a true international treaty but as an administrative decision with all the considerations abovementioned about how determinant "will" is in order for them to have effect and fulfill their last aim: cooperation and protection of children, just as if it was an international convention.⁶¹

4. Comments about the bilateral agreements on intercountry adoption subscribed by Spain

Before starting the analysis or comments about the bilateral agreements, it is necessary to point out what article 39.1 of the 1993 Convention of The Hague states, regarding that among the Contracting States other international treaties that contain dispositions about the issues regulated, may continue being executed, unless a contrary declaration is made by the States Parties to such instrument. According to Gonzalez Beilfuss,⁶² there is no contrary declaration, therefore it is allowed to continue executing agreements like those subscribed with Romania, Peru, Colombia, Ecuador etcetera. The best would have been to conclude these agreements once the 1993 Convention of The Hague is ratified, and not the opposite way (cases of Romania, Peru and Colombia) and, if judged convenient, to display then a special agreement under the protection of article 39.2 of the 1993 Convention of The Hague. This would have brought a series of additional advantages, such as the obliged cooperation between the States in order to assign the child a family. At present, the protocols do not leave clear if the latter corresponds exclusively to the country of origin, and if the receiving country has no competence at all. This is an undeniable circumstance in the text of the 1993 Convention of The Hague, since the agreement of the central authorities in this ambit shall be full, so that the procedure can continue (article 23.1 1993 Convention of The Hague).⁶³

The issue itself is that article 39.1 of the 1993 Convention of The Hague does not refer to this type of agreements or protocols. The agreements to which it refers are: Convention on International Judicial Competence, Applicable Law and Recognition of Decision on Adoption, concluded in The Hague on November 15, 1965; Convention on the Civil Aspects of International Subtraction of Children, subscribed in The Hague, October 25, 1980 or the Convention about Conflicts of Law on Child Adoption, in La Paz, on May 24, 1984.

The idea of taking into account only the stated documents was because they presented a larger potential of conflicts, leaving aside other conventions where there were apparently less potential conflicts. This way, the conflicts that came up with respect to the unmentioned conventions, might have to be solved by the States Parties according to the laws, should there be any, established in these other conventions, or according to the general rules of the law of the treaties.

Therefore, the first paragraph of article 39 of the 1993 Convention of The Hague takes into account the situation of States already bound by agreements on adoption and reproduces the classical solution, as it happens for example in the 1988 Convention of The Hague about the law applicable in cases of successions for death reasons. On the other hand, the second paragraph of the same precept, allows the possibility of concluding prospective agreements, not complementary ones, that favor their execution in the reciprocal relations.⁶⁴

In the subsequent agreements, which will be analyzed, are established the outlines of cooperation or coordination between the different competent authorities on intercountry adoption, in order to establish the legal channels and the opportune legal guaranties, thus facilitating the procedures of the intercountry adoptions among the residents of the mentioned countries.⁶⁵

Once this elucidation was made, we would like to put forward, on the other hand, some of the comments that shall be reaffirmed with the analysis of this conventional practice. So, each of the agreements treated here has a different denomination; there has not been unanimity in giving them a title that unifies and harmonizes, in this sense, the issue object of regulation. This way, Romania, Ecuador, Peru and Philippines decided to call them protocols; Colombia called it executive agreement⁶⁶ and Bolivia, bilateral agreement.

According to the nomenclature used in article 39.2 of the 1993 Convention of The Hague, we considered convenient to denominate them agreements, regardless of the legal nature each of them has just as we expressed above.

On the other hand, the agreements of Romania, Ecuador, Peru and Colombia have been signed and seal, in Spain, by the ministerial authorities, specifically by the Ministry of Labor and Social Matters; and regarding the other signatories, the conclusion was made by the representatives of the organisms in charge of managing intercountry adoptions in such countries. In the two most recent agreements there was change in its rubric, in Bolivia, the one in charge of signing by Spain was the State Secretary of International Cooperation and Ibero-America, and by Bolivia, the Ministry of Relations and Cult. Regarding Philippines, the State Secretary of Foreign Affairs signed by Spain, and the Vice-Minister of Welfare and Social Development signed by Philippines.

Finally, I would like to say that more transcendental comments will be made about each of the agreements or protocols mentioned (being unable to avoid the constant reference about the interpretation that article 17 c of the 1993 Convention of The Hague has implicit), without the need to comment one by one all of their articles since they are, practically, a perfect copy of each other. Moreover, as it usually happens, the most recent ones normally present a legal technique that is more pure and that has a better wording, for they received feedback from all the "incidences" through which the first ones went through, that is, those that dared to start a work of such magnitude. None the less, we consider it would be pertinent to begin by making a more detailed comment about the first agreements subscribed: Romania, given its particularity, we do not know if because of its condition as Eastern European country, shows significant differences with those subscribed later; and Peru, for being practically the first one in displaying a whole series of articles ex profeso about intercountry adoption with Spain; and finally, ending with an equally detailed comment, about the most recent agreements, which are Bolivia’s and Philippines’.

A. Romania. Protocol between the Romanian Committee on Adoptions and the Ministry of Social Matters of Spain for the coordination of intercountry adoptions between Romania and Spain, April 2, 1993

The most recent data shows the amount of Romanian children who reached Spain: in 1997, 0; in 1998, 84; in 1999, 280; in 2000, 583 and in 2001, 373. If we make reference to the data that from the total amount of children received from Eastern Europe, Romania took the second place, sensitively under Russia, we can prove that along the years, a Convention this one has been truly efficient.⁶⁷

In the ambit of material application, the 1993 Protocol of Romania refers exclusively, to adoptions of Romanian children by Spaniard nationals or Romanian citizens that are residents in Spain. As Esplugues Mota would say, it is an instrument whose purpose is channeling the "exportation" of Romanian children to Spain.⁶⁸

The 1993 Romanian Protocol, directly approaches the problematic of the adoption of Rumanian children by Spaniards or by Romanian residents in Spain.⁶⁹ This protocol, in twelve paragraphs and an appendix about the procedure and requirements to the adoption of Romanian children, expresses the general principles that shall rule the coordination of intercountry adoptions between Romania and Spain, according to the 1989 United Nations Convention on the Child’s Rights, as follows: principle of subsidiarity, child’s best interest, guarantee to have rights, safeguards and equivalent conditions to those that already existed in domestic adoption, and the principle of intercountry adoption not producing any undue economic profit.

Regarding the "outlines for the coordination of adoption", it literally establishes:

1) The General Direction of Legal Protection to the Child (at present General Direction of Social Action of the Child and of the Family of the Ministry of Labor and Social Matters) shall only collaborate with the Romanian Committee of Adoptions⁷⁰ in the coordination of intercountry adoptions of Romanian children by Spaniard nationals (at least one of the two parents shall have the Spaniard nationality) and/or by Romanian citizens residents in Spain. Consequently, the Romanian Committee on Adoptions shall only accept the petitions of Spaniard nationals and of Romanian citizens residents in Spain remitted by the General Direction of Legal Protection of the Child (DGPJM), that is, it shall not recognize, unless the Spaniard government determines the opposite, an authority other than the DGPJM.

2) In Romania, it demands the constitution of adoption in other countries, by the competent authorities, meaning that the adoptions of Romanian children shall be made before the Romanian competent authority according to the applicable Romanian and Spaniard legislation.

3) The DGPJM shall only present the petitions remitted by the competent services regarding protection to children from the Autonomous Communities. This might mean that private adoptions are banned⁷¹ by the Romanian Committee on Adoptions; only accepting independent adoptions,⁷² always carried by the DGPJM, and those adoptions processed through the ECAI, duly accredited by both States Parties.

4) In case there is any exception to what the last clause establishes, the Ministry shall communicate the Romanian Committee of Adoptions which other authority of the Spaniard State may process directly the requests for adoptions before such committee.

5) The protocol also states, in its appendix, both the requirements and the procedure to adopt a Romanian child, however, it does not specify how to update the requirements and documents demanded. This could grant more efficiency, agility and transparence to the process, and might be accomplished for example, through exchange of notes. The clause concerning requirements refers to admissible candidates for the adoption, and the adoptable children; in the clause that refers to the procedure to follow in order to constitute adoption, it is specified the application and the documents required, references about the child, acceptation of the child and others.

In each of these epigraphs international practice is respected with respect to the list of documents normally demanded, all of which are duly translated by a jury translator, legalized and authenticated; it is also appointed the subsequent steps to follow in the process of adopting a Romanian child,⁷³ by Spaniards or Romanians who are residents in Spain, pointing out the issue of the pre-allocation report and requesting the declaration of acceptation among the central authorities, as well as the duty to take the candidates to Romania to "finish" the process of adoption during the ninety days following the signing of the declaration of acceptation of the adoption. Reference is also made to the follow-up reports, but in a cuasi informal way, since it expresses that "the competent administration in Spain, shall facilitate the Romanian Committee on Adoptions, follow-up reports about the situation of Romanian children during two years" and we underline "facilitate" because it is not the same as expressly request.

In the clause entitled "Others", there are quite important issues, since the Romanian Committee of Adoptions gives the family a certificate that expresses that the child could neither be allocated nor adopted in Romania during the six months after his or her registration in the Romanian Committee of Adoptions, handing out also the rest of the documents that correspond to the same Committee. The expenses of the private attorney’s wage shall be covered by the candidates and they shall be directly deposited in the Romanian Bank of Foreign Commerce. Finally, it is worth mentioning the clauses of protection of the child in case of rejection or abandonment in Spain and the cooperation systems between both countries.⁷⁴

Since 2002, the borders in Romania were closed, in terms of intercountry adoption, because of a change of legislation.

Nowadays, the protocol we commented is going through an important review period; it has even stopped being into force without previous denouncement, since with Spain’s⁷⁵ and Romania’s⁷⁶ ratification of the 1993 Convention of The Hague, part of the contents of the protocol are against, explicitly, some stipulations of the 1993 Convention of The Hague, reason why it would be necessary to set the bases of the protocol with Romania about the norms and stipulations of the Convention.⁷⁷

The current situation in Romania, the international discredit towards its view of the policies of protection of childhood does not have a positive influence in its "reappearance" in the field of intercountry adoption.

B. Peru. Protocol between the Ministry of Social Matters of Spain and the Ministry of Peru’s Presidency on Intercountry Adoption, concluded in Madrid, November 21, 1994

The information we have regarding Peruvian children adopted by Spaniard residents are: in 1997, 81; in 1998, 151; in 1999, 126; in 2000, 99 and in 2001, 71.

The protocol has a purposes article, four chapters, fifteen articles, and an appendix.

Chapter I "Application jurisdiction" (articles 1-2), in the first article of the Peruvian protocol, begins establishing a system of cooperation among the signatories that assures, in the adoption procedures, the whole eradication and prevention of subtraction, traffic, trade and sale of minors. The second clause includes assuring the reciprocal recognition of the full adoptions made in accord with the protocol, constituted according to both States’ legislations.⁷⁸

Article 2 covers, in its first clause, the territorial applicability scope of the law, in that the protocol or agreement is applicable so that a Spaniard or Peruvian child can be fully adopted by nationals of another State; that is, the element of nationals is taken and the concept of "habitual" residence is not considered, as it usually happens according to the concept of intercountry adoption established in article 2 of the 1993 Convention of The Hague.⁷⁹

On the other hand, a supposition continues and another one is inferred, which, until now, have not been stated in similar documents, like the application of the agreement also to stateless children found in territory of one of the two States, for their adoption by nationals of the other State. This is definitely highly improbable in stateless children found in Peruvian or Spaniard territory,⁸⁰ given the suppositions in which such an individual is catalogued as stateless, without nationality,⁸¹ but it is important and plausible to embrace such supposition if we want to see it as another protection to the child’s best interest.

Clause 2 of article 2 defines what a "child" is, the person under eighteen years old, which shall be defined or established, precisely in the purposes article of the protocol, in the section of general principles; not in this clause, leaving aside what refers to the material application jurisdiction.

Chapter II "Central Authorities and authorized bodies" (articles 3-6), remits with respect to central authorities, in article 3, clause 1, to the list of institutions that are related to appendix I, coinciding with the one included in the declaration formulated by Spain when it ratified the 1993 Convention of The Hague. That is, it establishes a central authority of communication, which is the Ministry of Labor and Social Matters, by means of its General Department of Legal Protection to the Minor, and in this case, the one that acts as this department at present, the General Department of Social Action, of the Child and the Family, as well as the central authority for each of the Autonomous Communities with respect to its territory and residents.

With respect to Peru, it only stipulates that its central authority is the Technical Secretary of Adoptions.

It is also established the possibility that when there is an exception to what was explained, regarding central authorities, the direct action of the Technical Secretary of Adoptions of one or some Autonomous Communities, is also envisaged. This way, the Spaniard Ministry shall communicate the Technical Secretary of Adoptions of Peru, which community or Autonomous Communities may process the petitions of adoptions directly, and carry out, also directly, the rest of the communications indicated through the protocol.

Article 3, second clause, refers to the devolution of functions by the central authorities, to public or private organs, duly authorized by the proposing party and accepted by the other party;⁸² it makes reference to the feasibility of constituting mediation through Collaborating Entities of Intercountry Adoption, ECAI, with the perception of the double accreditation, that is, authorized by Spain and accepted by Peru. The third clause makes reference to the control, surveillance and system of punishments given to these bodies by the central authority of the receiving State.

Article 4.1, according to what article 7.1 of the 1993 Convention of The Hague establishes, states that they shall "promote co-operation amongst the competent authorities of both States in order to ensure the protection of adoptable children achieving the other objects of the protocol. Particularly, these shall carry out and follow up, according to them, the pre-adoptive stage, which shall consist in the designation of an adoptable child, to the prospective parents that are eligible and suited to adopt, and shall watch over the subsequent stage for the judicial resolution".

The mentioned article seems to "superficially" cover —which we consider is not the most suitable way—, the procedure and the most significant stages of intercountry adoption, strengthening the importance given to the pre-adoptive stage with the pre-assignation or allocation of a minor, as well as the selection of the most suited or apt requesters of the child.⁸³

Likewise, under article 4.2, they shall be mutually informed about their national legislations on adoption and about any other general issue concerning adoption; they shall keep constant contact with regards to the enforcement of the protocol; and they shall eradicate any obstacle that might prevent its fulfillment.

Article 5 has influence on what articles 8 and 9 of the 1993 Convention of The Hague establish; it expresses that the central authorities, directly or through the authorized bodies, shall take all appropriate measures to assure the child’s best interest; to facilitate, follow, and expedite proceedings with view to adoptions; to keep from obtaining undue benefits in adoption; to carry out and promote the control on adoptions in the respective States; as well as to provide each other with evaluating elements about experience with intercountry adoptions made in accordance with the present protocol. In fact, it expressly refers to the evaluation reports that shall have a six-month periodicity during four years. It is important to point out the fact that such a protocol expressly establishes this information post-adoption goes along with the spirit of the 1993 Convention of The Hague.

Article 6, on the other hand, defines in which moment the adoptions considered in the protocol take place. In this sense, certain requirements are to be fulfilled, similar to the ones contained in articles 4 and 5 of the 1993 Convention of The Hague:

1) The competent authorities have established that the child is in a state of abandonment or adoptable;

2) The central authority of the State of origin of the child has ensured that the intercountry adoption is in the child’s best interest;

3) The central authority of the State that shall receive the child ensures that the prospective adoptive parents are eligible and suited for intercountry adoption;

4) The competent organism of the State that shall receive the child ensures that he or she will be authorized to enter and reside permanently in that State.

5) The authority of the State of origin, in accordance with its competence, assigns the child to the prospective adoptive parents.

Obviously each of the requirements are worthy, given the convergence and coincidence with the ad hoc group of articles of the 1993 Convention of The Hague; but we set into question the feasibility or the truth of the idea expressed in article 6 of the protocol when it states that the State of origin, "in accordance with its competence", has to assign the child to the requesters and it expresses this by giving the idea that this parental rights or duties correspond only to the State of origin and shall not share it with the receiving State; this goes against article 17 c) of the 1993 Convention of The Hague.

According to this article, the State of origin shall only entrust the child to the prospective adoptive parents only if the Central Authorities of both States have agreed that the adoption may proceed. This clause c) states that the Central Authorities of both States shall agree "that the adoption may proceed", which means that adoption may come into its next stage of the procedure towards its conclusion. It is a clause that allows, at some point, both the State of origin and the receiving State, to stop an adoption if there are, or might seem to be, important legal obstacles. Clause c) implicitly regulates the conditions of the adoption because if one of both States considers there is an impediment, the central authority of the other State shall have the faculty to not allowing the procedure of adoption continue.⁸⁴ This leads to the reiterated need of allocation of the child.⁸⁵ Both States shall remit their accordance or agreement so that such allocation is in the child’s best interest, in accordance with the law and this way, to continue with the procedure. Article 17 c) of the 1993 Convention of The Hague entails, as we see, a great relevance for the successful outcome of adoption and the Convention of The Hague itself.

Chapter III "Procedure" (articles 7-11), in article 7.1, in accordance with the content of article 14 of the 1993 Convention of The Hague, states that "the prospective adoptive parents, duly declared suitable, shall make the request to the central authority of the State of their habitual nationality or to the authorized bodies", and in its second clause, this central authority or accredited body, which shall receive their request, shall transmit it to the central authority of the other State with all the information and documentation required, in accordance, once again, with article 15 of the 1993 Convention of The Hague. All the information addressed to the State of origin shall be duly legalized and authenticated, also, the State of origin shall undertake the petition and inform the central authority of the receiving State or authorized body that mediates in the expedient, about the acceptation or rejection of the latter.

Article 8 refers to the adoptability report that shall be transmitted by the State of origin when it there is a pre-allocation. This way, it states that:

The central authority of the child’s State of origin or the authorized bodies shall transmit the central authority or the authorized body of the receiving State all the information related to: age, sex, social environment, when possible, report about the physical situation, medical history of the progenitors and even a recent photography of the child.

All this also contained in article 16 of the 1993 Convention of The Hague.

Afterwards, the protocol in article 9, seems to give one step back because after establishing what was requested in a pre-allocation, it stipulates that in the moment in which the central authority or accredited body agrees on the allocation (or pre-allocation) of one or more adoptable children to one of the requesters, they shall inform it as soon as possible to the central authority or accredited body of the other State. Perhaps it would be more convenient to express what concerns the acceptation or not of the pre-allocation in order to then review the documentation that both States shall process and transmit. The important thing would be, as a consequence, that in the "spirit" of the legislation, article 17 c) of the 1993 Convention of The Hague, it is taken into account in the joint decision of both States in the pre-allocation or allocation of the child.⁸⁶

The same article, not in the order explained, sets two hypotheses:

1) When the pre-allocated child is accepted (does not indicate the necessary order of: 1st) authorization by the central authority of the receiving State and 2nd) the acceptation of the prospective adoptive parents), the due process shall begin (sic shall continue) the necessary process, in which a declaration of his or her intention to adopt the proposed child shall be signed, within less than fifteen days since the day the communication was received. All this shall be carried out in accordance with each State’s law, being reciprocally informed about such procedure and about the particularities to bring a good end to it. In order to do this, the requesters shall go to the child’s country of origin as soon as possible, within less than thirty working days, and stay there until the adoption is concluded. Here we need to say that it is convenient that the waiting time for the child is not extended in order to avoid anxieties or doubts in the child about the arrival of his or her new family; but on the opposite, it is a short time for the requesters to plan a trip. The time the process will take is not expressed, thus neither is their staying in Peru, but this does not dismiss the need to notify their attendance to their place of work early enough, without specifying whether there are family responsibilities, for example biological children, whom they shall also leave adequately watched over.

2) If the child is not accepted, the requesters shall make a written document in less than fifteen days since the reception of the communication.

On the other hand, also with respect to the procedure, article 10 specifies that the central authority of the State that receives the child, shall guarantee in accordance with its legislation, the accomplishment of all the necessary actions for the recognition of the full adoption and shall inform the central authority of the child’s State of origin transmitting the required documents; which is quite an interesting topic if we consider the great trajectory recognition of intercountry adoptions has had.⁸⁷

We shall not include precisely this precept within the category of procedures; we shall include it, just as article 7 of the Philippines Protocol which we will analyze further, in an article previous to the chapter of procedures, with the express indication that it "guaranties the fulfillment of all the necessary requirements for the recognition of the full adoption, reporting this to the central authority of the State of origin, sending it the pertinent information".

Moreover, in the procedure of adoption of a Peruvian child, article 11 states that in case that within the process of adoption (without specifying the stage of the process –previous or intermediate-) are verified such impediments that, considering the child’s best interest, make the recognition of adoption inopportune, the central authority that verifies such impediment shall immediately inform the central authority of the other State, in order to establish, through consent, the most adequate measures to protect the child’s rights. During this period, the central authority shall ensure the full protection of the child until the definitive measure of protection is settled.⁸⁸

This type of "impediments" expressed in this article are hard to conceive if, the child’s pre-allocation or allocation was actually made with the proper care. We think about the supposition that the consensus or agreement of places was left behind, according to article 17 c) of the 1993 Convention of The Hague, reason why it shall not refer to legal impediments but to situations that emerged from the living together of the child with his or her prospective adoptive parents and the proof that there is no empathy between the child and the requesters.⁸⁹

Chapter IV "Final clauses" (articles 12-15), in article 12, the central authorities are bound to keep all the information relative to the origins of the child and his or her family, if known, and to allow the access to it, with the due authorization, within the limits established by the law of the States that conclude the protocol, as well as article 13, they are compelled to ensure that the dispositions contained in them are carried out.

Article 14 attributes the protocols an indefinite duration, which can be modified at any moment through a written agreement of the signatories, as well as a unilateral denunciation by the Ministry of Labor and Social Matters of Spain or by the Ministry of Presidency of Peru, through a previous written notification to the other signatory. This notification shall start having effect three months after. The denounce of the protocol shall not have any effect on the already started procedure of adoptions until all the process finishes, nor on the compromises acquired with respect to the already adopted children.

Article 15, finally, incorporates, as Esplugues Mota notices, "a mysterious final calling to the non-application of the protocols «to the adoptions in exceptional or particular cases covered by the legislation of each State»".⁹⁰

The pending issue after reading all the Peruvian protocol is what is "hidden" behind it, for it is not published not even in the Official State Bulletin but also in no place available for the interested party.

C. Colombia. Executive agreement between the Ministry of Social Matters of Spain and the Colombian Institute of Family Welfare on Adoption Matters, concluded in Madrid on November 13, 1995.

This agreement intends to face a very consolidated reality, in that Colombia represents one of the countries with the highest volume of children issued for intercountry adoption.⁹¹ Spain received in 1997, a total of 250 Colombian children; in 1998, 393; in 1999, 361; in 2000, 414 and in 2001, 319. These numbers represent each year, around 40% of the Latin American children that arrive to Spain. With this information, it is necessarily justifiable that both State of origin and receiving State, seek, in that moment, a mechanism as a form of agreement, in order to facilitate and guarantee transparency of the adoptions amongst the two countries.

The executive agreement signed with Colombia has four chapters, among which there are fifteen articles and an appendix.

The agreement begins, like its predecessors, with a sentence of Law or general principles about child protection, always with a double purpose: on the one hand, avoiding abusive situations with respect to children, such as subtraction, trade or sale of children; and on the other hand, to enhance the full reciprocal recognition of the full adoptions concluded and constituted amongst the countries signatories of the protocol.⁹²

Article 2.1 refers to the application of the agreement of the "child resident in Spain or Colombia to be fully adopted as a resident in the other State". Both the children and the requesters shall be residents, not nationals, of the Contracting States, trying to go along with what the 1993 Convention of The Hague establishes, but the Colombian agreement missed the element of "habitual" resident, as article 2 of the 1993 Convention of The Hague establishes. In this article Colombia refers to the full adoption.⁹³

The subsequent articles reiterate the stipulations covered in the protocol of Peru, like what should be understood by child,⁹⁴ designation of central authorities (with respect to Spain, the same ones included in the Peruvian agreement, and with respect to Colombia, the Colombian Institute of Family Welfare, ICBF), delegation in accredited public or private organisms authorized by both States parties, and so on, reason why we do not consider necessary to repeat the comments already made with respect to the Peruvian agreement. We only wish to express that there are always convergent criteria with the 1993 Convention of The Hague.

Article 7 establishes, with respect to the procedure, what the same article and clause of the Protocol of Peru establishes, except it does not ask for a receipt form of the application sent to the State of origin. We shall not forget that the procedure has its foundation on the exchange of communications or control reports between the authorities, ensuring the good ending of the procedure. Therefore, Colombia does not fulfill certain requirements about this matter.

Article 9 rectifies the appreciations to which we were referring regarding article 6 of the Peruvian protocol, expressing that the:

Central Authorities or authorized bodies, at the moment of agreeing upon the designation of one or more adoptable children to the requesters, shall begin the necessary process, according to each State’s legislation in order to conclude the adoption, being reciprocally informed about such procedure and about the actions taken to carry it out properly.

It does not matter if nothing is said about the authorities required for the placement of the children or about the documentation and signatures required in order to continue with the due process. What truly matters is the important step the Colombian agreement makes by following what article 17 c) of the 1993 Convention of The Hague establishes, which, as we mentioned previously, ensures that the decision of allocating a child to some particular requesters, shall be a joint decision taken both by the State of origin and the receiving State, as a core point of the Convention.⁹⁵ It is a joint agreement so that adoption could enter the next stage of the procedure towards its conclusion.

On the other hand, article 11 of the Colombian protocol, goes beyond what the Peruvian Protocol establishes, for example, when it expresses that:

In case that during the process of adoption there are verified impediments "or inabilities or the equivalent in Colombian and Spaniard Law" that, considering the child’s best interest, do not make the recognition of adoption opportune, the central authority that determines such impediments or inabilities shall inform immediately the central authority of the other State in order to establish, through common agreement, the most suitable measures to protect the child’s rights. During this period, the central authority shall ensure the full protection of the child until the decision about the definitive protection measure is reached.

We regret this type of stipulation, just as we expressed about the Peruvian comment, because they have many implications about the lack of the due care in the previous stage of pre-allocation, however, the added part "or inabilities or its equivalent in Colombian and Spaniard Law" would seem to pretend to leave clear they are supervened.

D. Ecuador. Protocol between the Ministry of Labor and Social Matters of Spain and the Ministry of Social Welfare of Ecuador on Intercountry Adoption, concluded in Madrid on March 18, 1997

The information about Ecuadorian children that reached Spain through intercountry adoption, were: en 1997, 0; en 1998, 3; en 1999, 0; en 2000, 21 y en 2001, 16.

The numbers launched do not denote a significant affluence of Ecuadorian children in Spain, however, an agreement was protocolized in this sense, which does not subtracts value to the will and initiative of both governments.

The protocol has a purposes article, four titles, fourteen articles, and two appendix, and it does not differ practically in anything to what was habitual in its predecessors.

It establishes the application of the protocol in case a child resident in Spain or in Ecuador in order to be fully adopted by residents in the other State; it is also applied to the stateless children found in the territory of one of the two States; it establishes the procedure followed for adoptions between both States, as well as the line followed by the communications and actions that correspond, in Ecuador, to the Technical Department of Adoptions, and in Spain, to the General Direction of the Child and the Family, granting that, in case a direct communication is held between the central authorities of the Autonomous Communities and those of the State of origin, such circumstance is communicated to the General Direction. Then, the protocol gives preference in the procedure and review of expedients to the General Direction, which does not exclude the possibility of a direct acting of the rest of the administrative bodies.⁹⁶

Regarding the topic on which we have based our comments, about the child allocation, Ecuador textually states what article 9 of the Colombian agreement establishes, but it does so in Appendix II "Requirements and procedure", clause four relative to the "Child’s allocation". It includes, this way, a precept that does not differ to what the 1993 Convention of The Hague establishes.

E. Bolivia. Bilateral agreement between the Kingdom of Spain and the Republic of Bolivia on adoptions, concluded in Madrid on October 29, 2001, Official State Bulletin, no. 304, December 20, 2001

This agreement substitutes the two previous ones, of April 5, 1995 and May 21, 1997.

Spain received in 1997, a total of 18 Bolivian children; in 1998, 31; in 1999, 59; in 2000, 66 and in 2001, 18.

The agreement is not divided into chapters, as was the habitual practice in the previous agreements. It displays a "preamble", six articles and ten final dispositions.

The agreement begins by establishing a series of basic principles, general principles, without really being a preamble, like the principle of subsidiariety, established in article 21 of the 1989 United Nations Convention on the Child’s Rights, in which intercountry adoption is put as a means to protect the child when he or she does not find a family in his or her country of origin. It also establishes the principle of the child’s best interest as a foundation and interpretative basis of the bilateral agreement between Spain and Bolivia; another one is the protection of the child’s rights to his/her cultural and ethnic reality, even when the alter does not mention it expressly. Likewise, as a rule established in the preamble itself, the child shall have guaranties equivalent to those existent in domestic adoption. Also, the allocation of the child carried out by the competent authorities shall not produce, through intercountry adoption, any kind of undue benefit to those involved in the process; and finally, it mentions the will to establishing, through an agreement like this one, a co-operation system amongst the parties which ensures the prevention, and total elimination of subtraction, trade and sale of children.

Article 1, with the title "Scope of application", establishes it when stating that "it constitutes the framework for the processing and review of the applications within the Bolivian and Spaniard legislations and the conceptualization of the doctrine about the legal institution of the legally recognized adoption in both countries", and it establishes the territorial scope when referring to the boy, girl, or adolescent (the concept of minor or child is not determined) with "habitual residency in the territory of the Republic of Bolivia or Spain could be fully adopted by nationals of one State or the other, in accordance with the constitutional and legal dispositions in force in both countries".

We italicized the word nationals because from this precept it is clearly inferred that it is only applicable to adoptions made within this agreement between nationals from one State or the other. This precept differs, in this case, from the 1993 Convention of The Hague, which only expresses the matter of residence with respect to children and the requesters.

Bolivia, furthermore, when expressing this condition of being a national in order to be subject to intercountry adoption without dismissing the treatment that shall be given, for example, to the spouses of another nationality in case of joint adoption.

The subsequent articles establish who shall be the central authorities of both States parties (in Bolivia, the Vice Minister of Genre, Generation, and Family Matters, or the institution that the law determines shall assume in the future such functions and responsibilities, and in Spain the same authority designed in all the previous protocols), distribution of functions to accredited bodies, duly authorized by both States, adoption requirements, reciprocal compromise of informing about their respective legislations and procedure.

About the requirements to adopt, there is no big difference to those demanded by the 1993 Convention of The Hague: a) That the child is declared abandoned or adoptable; b) To verify that the intercountry adoption is in the child’s best interest; c) To determine that the prospective adoptive parents are eligible and suited for the intercountry adoption; d) To ensure the child’s entrance and permanent residence in the receiving State, and e) That the central authority of origin has allocated the child to his or her prospective adoptive parents.

The convention regulates, on the other hand, procedural aspects of the intercountry adoptions, but it does not establish the judicial competence for the constitution of the latter, neither criteria about the applicable law to intercountry adoption.⁹⁷

Another issue that pops out from the reading of the Bolivian agreement, is what article 2, clause e) establishes, about the decision of placing the child with a particular adoptive family as a decision that exclusively concerns to the authorities of the country of origin. It is a disposition that reiterates what article 6 of the Peruvian protocol states. This precept might find its justification in the supposition, precisely, that the State of origin is precisely the one which, with the documentation given by the receiving State —psychological, social, economic reports, certificates of suitability, etc.— shall consider the empathy that may exist between one of the children and the requesters of adoption in Bolivia. There is an effort, a common agreement, between the State of origin and the receiving State, which does not need to be simultaneous and which culminates with the pre-allocation that shall be authorized by the receiving State, without the intervention of the State of origin, as well as the acceptation by the proposed requesters. It is a broad interpretation of what article 17 c) of the 1993 Convention of The Hague establishes, which does not obstruct this joint decision in the attribution of the child.

If we interpret like this, then, there would not be reasons to believe that this generalized practice, as we see in most of the children’s countries of origin, may create distances with respect to the content of the 1993 Convention of The Hague.

Finally, we shall point out that the Bolivian agreement is the first bilateral agreements on intercountry adoption contracted by Spain, that was published in the Official State Bulletin. This denotes a formality and publicity spirit, caring about, especially, the will to ensure it a character of true agreement or treaty subject to international law⁹⁸ according to article 39.2 of the 1993 Convention of The Hague⁹⁹ embraced by the will the executive agreements entail.¹⁰⁰

We shall not forget either that the Bolivian 2001 agreement is the third one contracted between Spain and Bolivia, with a clear pretension of constant review and updating on the subject.

F. Philippines. Protocol on intercountry adoption between the Kingdom of Spain and the Republic of Phillipines, concluded in Manila, on November 12, 2002, Official State Bulletin no. 21, of January 24, 2003, coming into force, Official State Bulletin, no. 265, of November 5, 2003

In 2001, the information launched by the Ministry of Labor and Social Matters show that with respect to Philippines, no adoption was made in Spain. We should consider that this country includes, in accordance with its legislation, four hundred annual allocations through its central authority, the Inter-Country Adoption Board, ICAB. This indicates the need to contract agreements like the present one in order to cover intercountry adoption between Spain and the Philippines.

Philippines is one of the countries with the oldest tradition and most consolidate practice of intercountry adoption,¹⁰¹ further, with respect to Spain, and by subscribing such a protocol, it reveals a cultural affinity that comes from the times when it was a Spanish colony.

The protocol is divided into four titles, fifteen articles, and three appendix.

The "preamble" of the protocol subscribed between Spain and the Philippines, establishes in the first place, who the parties that subscribe such protocol are. Then, a series of compromises are assumed through general principles of intercountry adoption.

This way, the Contracting States show their will to follow the principles established at the international level, again by means of the 1989 United Nations Convention on the Child’s Rights, in which international adoption is conceived, through the principle of subsidiarity, as a means of protecting childhood recognizing the right of the child to remain, principally, with his family of origin, or at least to be adopted in his or her place of origin. If not, it is acknowledged that intercountry adoption may have the advantage of giving the permanent family a child that cannot find it in his or her country of origin, always respecting his ethnical-cultural identity.

It also establishes the signing and ratification of the Contracting States, to the 1993 Convention of The Hague and that therefore ensures:¹⁰²

a) On the one hand, the condition expressed in article 39.2 of the Convention, in which the protocol or agreement shall be subsequent to the coming into force of the Convention of The Hague between Spain and the Philippines, entailing the legal nature of the bilateral special agreement with the specific purpose of encouraging its application in the reciprocal relations, in which we do not see, however, under the light of article 39.2 itself, the obligation of the States that conclude these agreements, to transmit a copy of the latter, to the depositary of the 1993 Convention of The Hague.

b) On the other hand, and related to the latter, a compromise to fulfill the international exigencies around the child’s best interest, as a core principle, supported on the premise that the child lacks a stable familiar environment. The family appears as the most suitable social instrument to the child’s education and personal development, for it is not only a means of transmission of values and parameters of behavior, but it is the human nucleus in which the child may cover his or her affective needs more broadly.¹⁰³

Moreover, the child to which intercountry adoption refers, shall have all the rights, protections, and conditions equivalent to those that exist in the case of national adoption with both parties’ compromise of offering the highest reciprocal guaranties for the adoption of children in the other country.

The central authorities of each country are in charge of the child’s allocation. The Protocol of Philippines strengthens the deeper involvement of the receiving State’s authorities when allocating the child (article 17 c) 1993 Convention of The Hague), than the usual practice.

Likewise, emphasis is put in the non-lucrative nature of these adoptions, in which no undue payment or contribution shall be given to the people who take part in the procedure.

Chapter I, about the "Scope of application", is composed by two articles in which we can perfectly visualize that article 1 refers to the material application scope, and article 2, clause a) to the territorial applicability scope.

With respect to the material ambit, it reiterates the main aims, established also in the Preamble of the 1993 Convention of The Hague, that rules, basically, the international community on protection to children matters. We are referring to:

a) The system of co-operation amongst the parties, which ensures the full elimination and prevention of subtraction, trade and illegal sale of children.

b) The recognition of the full adoptions made within the framework of such protocol and in accordance with both States’ legislations.

Regarding the territorial scope, it expresses the necessary conditions for an intercountry adoption to take place, that is, that the child and the requesters ought to have a residence in different countries, according to what article 2.1 of the 1993 Convention of The Hague establishes, and like article 2 of the protocol states: "it shall be applicable in the case of full adoption of a child whose habitual residency is Spain or the Philippines by people habitually residents on another country". This does not give an idea about the bi-frontal character, in that to what extent a country could be both sender of children and receiver.¹⁰⁴

Article 2, clause b) does not set a standard with respect to the mentioned territorial scope, thus, it defines what shall be understood by "child". We understand that this type of appreciation might have been placed better in the preamble, where the principles and standards of this protocol were put, and where the conceptualization of child or minor could have well been included.

Chapter II, "Central Authorities and officially authorized bodies" (articles 3-8), tries to protocolize everything related to central authorities, but it sometimes omit quite relevant issues, other times, it reiterates and even go too far in issues that shall be expressed, preferably, in an appendix of the same protocol.

Article 3 begins, in clause a, assertively, by expressing who the central authorities named by both parties are:

By the Kingdom of Spain: each of the Spaniard institutions, with respect to the people that are residents in their respective territories, which have fulfilled the requirement included in article 6.2.b (sic 6.2) of the Convention on Protection of the Child and Co-operation on Intercountry Adoption, concluded in The Hague, on May 29, 1993. Such institutions are named in Appendix A.

Then, clause b) makes clear that the "General Direction of Social Action of the Child and the Family, dependent on the Ministry of Labor and Social Matters, shall be the central authority for the transmission of reports and for the communication with ICAB (Philippines’ central authority)…"; perhaps because of order reasons, it might have been better to establish that in accordance with article 6.2 of the 1993 Convention of The Hague, and also with the declarations made by Spain when depositing the ratification document of the 1993 Convention of The Hague, the Ministry of Labor and Social Matters was appointed. The General Direction of Social Action of the Child and the Family, was appointed as the central authority of communication and a central authority for each one of the Autonomous Communities for its territory and its residents (included in Appendix A and that are a total of 23).

This could be the general principle, and afterwards, clause b) might express that in case that:

Any of the designated Spaniard Central Authorities that appear in Appendix A processes the requests directly with the ICAB, the Ministry of Labor and Social Matters of Spain shall communicate it previously to the ICAB, and such agreement shall come into effect after being received by the respective central authority through a letter from ICAB stating it received such communication.

Professor González Beilfuss considers that when reading carefully article 3, clause b, we can see that it rectifies to a certain point, the declaration made by Spain, when ratifying the 1993 Convention of The Hague, with respect to article 6.2. This Convention establishes that the States that name more than one central authority shall name one to which every communication could be addressed for its transmission to the competent central authority within that State.¹⁰⁵ The contents of the convention do not prevent, therefore, the direct communication without the intervention of such central authority, reason why it is completely feasible and even more convenient, with a spirit of mutual trust and effective co-operation, as well as a procedural economy. Given the active role of the Philippines’ intercountry adoption process, it is indispensable that this direct communication between the central authority from Philippines and the corresponding central authority in the Spaniard territory in which the requesters have established their residence, regardless that the communication that shall proceed to be made to the Ministry of Labor and Social Matters, to its General Direction of Social Action of the Child and the Family. But what the Ministry cannot do is preventing the central authorities of the Autonomous Communities who wish to, from collaborating with the Philippines’ central authority without its intervention.¹⁰⁶

The matter is that in order to, simply, give transparency to the adoption processed between both Contracting States, the central authority of the receiving State; in this case, shall be the first one to know about this direct contact of what it talks between central authorities; let us not refer here to article 6.2 of the 1993 Convention of The Hague, which establishes that they shall name a central authority to which all the communication can be addressed for its transmission to the competent central authority within that State; but to notify this process, as we say, in order to give legal security or transparency.

Article 3, clause c) considers two suppositions:

1) The possibility that the central authorities could delegate "all or part of their obligations" in public or private organisms,¹⁰⁷ referring to the Collaborating Entities of Intercountry Adoption, ECAI, duly authorized by the proposing party —we understand, the receiving State—, approved by the other party —the State of origin—. It underlines that not "all" its obligations can be delegated; there are a series of undelegable functions the respective public entities should perform.¹⁰⁸

2) On the other hand, the need of a double accreditation by those ECAI that intend to mediate, is clearly and directly shown. First, they shall be authorized or accredited by the requester’s country of residence, receiving State, and then, approved or ratified by the children’s State of origin.

The last clause of article 3, clause d), does not leave untouched a highly important matter, as establishing who is to act as a supervisor of the bodies authorized by them, the ECAIs, invoking the rules ("state and autonomous, if it was the case", we may add) established in the same protocol, in the international conventions and in the legislation of protection of the child.¹⁰⁹ In Spain, the Autonomous Communities through their different habilitation or accreditation ECAI decrees, regulate with amazing efficiency, both its control and inspection as well as the procedure of claims and complaints, inspection and punishing regime.¹¹⁰

Article 4, clause a), on the one hand, aims to stress the principle of co-operation that the central authorities shall always project amongst themselves, but it mixes it with the enunciation of the co-operation procedure. Perhaps the most suitable thing to do would have been creating in this article a clause a) which expressed the guidelines of the mediator practice, by delegation of the central authorities, according to article 9 of the 1993 Convention of The Hague:

1) To collect, preserve and exchange information about the situation of the child and the prospective adoptive parents.

2) To facilitate, follow and expedite proceedings with a view to obtaining adoption.

3) To promote the development of adoption counseling and post-adoption services for the follow-up of the adoptions.

4) To provide each other with general evaluation reports about experiences with intercountry adoption.

5) To reply to justified requests from other Central Authorities or public authorities for information about a particular adoption situation.

We shall add, also, a quite important issue as the following: "forwarding each other follow-up reports, duly legalized by the diplomatic and/or consular representation, every six months, during the first years subsequent to the judicially pronounced adoption". And then, a clause b), which enounces only the procedure in order to then, assign it a whole chapter, like chapter III "Requirements and procedure".

With this supposition, we shall leave article 5 empty, which contains what article 9 of the 1993 Convention of The Hague already establishes.

None the less, we shall point out, with respect to article 5, that the agreement states that the central authorities should provide each other with general evaluation reports about the adoptions concluded under the protocol.¹¹¹

Article 6 expresses basically that "the adoptions covered by the present protocol shall be carried out when" certain conditions and/or requirements demanded are fulfilled in order to conclude the intercountry adoption in each of the States parties, mainly regarding adoptability reports, in the State of origin, once the national adoption has been discarded, and with respect to the certificate of suitability, in the receiving State. Afterwards, it remits to an appendix B to point out the complementary requirements and documents demanded by each of the Contracting States.

Article 7, on the other hand, focuses on the recognition of full adoption and appoints it as follows: "The Central Authority of the receiving State shall ensure, according to its legislation, the fulfillment of all the requirements needed for the recognition of the full adoption, and shall inform the central authority of the State of origin, sending it the pertinent documentation". We shall not forget the international guarantee of the child’s right to enjoy the rights and safeguards equivalent to national adoption, generally full.

Article 8, in the same sense, and trying once more, to ensure the enjoyment of his rights, enounces that if:

During the process of adoption, there is proof of the existence of any impediment, for example that in consideration of the child’s best interest it is not appropriate to recognize such adoption, the central authority that judges such impediment shall immediately communicate it to the central authority of the other State in order to determine by mutual agreement, the most adequate measures to safeguard the child’s rights, with close coordination with the central authority of the other State, until the definitive protection measures are decided.

We sustain our reluctance towards the need of such suppositions as we have been reiterating in the previous lines.

As we already said, chapter III "Requirements and procedure" (articles 9-12) links and coordinates what was exposed, as it states in article 9 that "in the procedure of the adoption expedients amongst the central authorities of both countries, the requirements shall be demanded and the complementary documentation shall be reviewed as Appendix B states, which is part of the present protocol. Appendix C contains the procedure for the processing of requests".

In order to update both the requirements and the documentation demanded, Appendix B, article 10 mentions the possibility of adapting:

In every moment to the legislation and/or criteria on applicable procedures in both countries, and could be then modified by means of the simple exchange of notifications between the Ministry of Labor and Social Matters and the Department of Social Welfare and Development, with a written approval by both parties’ Central Authorities.

Therefore, Appendix B fulfills a purpose which is facilitating information, from the protocol, about the requirements and complementary documents demanded. Such requirements and documents may vary according to the explicit needs because of the course of time, we are referring to the need of updating, which article 10 points out as it expresses that Appendix B may be modified through a simple exchange of notes. On the other hand, and regarding appendix B itself, it is surprising that the requirements of adoptability are stressed, as well as of the capacity to adopt both in the Philippines’ legislation and in the Spaniard one, justified, perhaps because of the preponderant role given to the receiving State in the stage of allocation of the child given the fact that the constitution of the adoption, according to the Philippines’ legislation, shall take place in the receiving State, which we shall comment when we analyze the contents of Appendix C.¹¹²

With respect to Appendix C regarding the "Procedure relative to the adoption of a Philippines’ child" it points out, in the first place, that in the Philippines procedure of adoption, the transference of the child to the receiving State is previous to the constitution of adoption and even it is said that the whole pre-adoptive stage shall take place in Spain under the supervision of the Spaniard authorities.¹¹³ Point 9 of Appendix C exposes this as follows: "the Spaniard central authority shall supervise the child’s allocation under the custody of the possible adoptive parents and shall be in charge of sending reports to the Philippines’ central authority every two months during a six-month-period, since the child’s date of arrival to Spain". Such agreement differs from the rest of those concluded by Spain in which it is not compulsory that the adoption takes place in the receiving State by the competent authorities,¹¹⁴ which does not constitute, at all, a negative reference.

We always refer to the core principle of the child’s best interest that consists, among other things, in accepting intercountry adoption when he or she truly does not have options in its biological family neither in a family of his or her country of origin. These are matters basically founded in the fact of not uproot the child from his culture, his background, avoiding this way a possible "trauma" of those children that suddenly cross borders and are part of a new family.¹¹⁵ We consider that the process should take its time and it is important that the child knows his prospective family in his own environment, and not in that of his adoptive parents.

The child, regardless his age, needs to assimilate the shift gradually, and if this assimilation could be made inside his own "territory", this would perhaps, benefit the adaptation. Too brusque and continuous changes may cause, precisely, the opposite effect that is intended in the Philippines’ procedure of intercountry adoption, which is the failure of not only the post-adoptive process, but also the pre-adoptive one, thus, failing to allocate the child through intercountry adoption. Appendix C itself, in its clause 11, confers the Spaniard central authorities a great discretionality, even to decide to inform negatively about the constitution of adoption. If the allocation suffers from any setback, the Spaniard central authority, once informing the Philippines central authority with in a maximum period of 72 hours, shall do as possible to give assistance to the family and the child (we would best say to the child and the family), and it could even decide to look for another adoptive family (and we doubt if the empathy with the child and another family could happen "in the process")¹¹⁶ or, as a last option, it could order the child’s repatriation. The damage a child may suffer by feeling rejected, without being close to the personnel that truly knows him, that is, the multidisciplinary team that are normally found in the orphanages from which these children come, in a country which is not theirs, and finding themselves again at the starting point without a a family option, shall be considered before starting a pre-adoptive process in the receiving State of the children.¹¹⁷

In the procedure established in the protocol, there is an issue that remains unclear, which is the need of launching follow-up reports of the child during certain period of time. It is true what Appendix C expresses about the "Stage subsequent to adoption: the central authority of Spain and the ICAB shall establish and coordinate a post-adoption program", but we ignore if it refers to a post-adoptive assistance program, preventing or supporting those families that might have problems derived from adoption. If this was the case about this program, then it would be important to have this type of assistance, but that is regardless of a compromise that goes beyond a post-adoptive service. It is the need of a follow-up of the child in order to prove the fulfillment under which such intercountry adoption was made, looking for the child’s best interest, and that it is fulfilled. As a specific example with respect to the different protocols we are analyzing, article 5 of the Peruvian protocol mentions the need to issue a six-month-report during a period of four years, however this relevant measure is not established in the Philippines’ protocol.¹¹⁸

Article 11, regarding the preservation and confidentiality of the information about the child’s background and family, if known, considers it would be possible to have access to it, with the due authorization, under the limits established by both States’ legislations.

Article 12 in its clause a) refers to the denunciation when "the stages of the procedure of intercountry adoption covered in the present protocol have not been respected, or when there is an imminent high risk of not being respected, it shall communicate it immediately to its central authority, which shall as well co-operate with the other central authority in order to adopt measures judged as necessary".

From the simple reading of the next clause b), it remains unclear that the protocol that is commented is framed within an international convention or agreement, since the dispute settlement between central authorities "relative to the interpretation or application of the present protocol shall be solved through consultancy or negotiation". However, chapter IV "Final clauses" (articles 13-14), show some of the features that define an international convention. This way, article 13, on the one hand, establishes that the process of modification or revision of the text, "shall be mutually agreed by both parties. Such modification or review shall come into force according to the disposition relative to the subject", on the other hand, it establishes the mechanism of modification of its precepts: "The Central authorities, by mutual agreement and through the letter exchange, could modify the points covered in Appendix B, in so far as such changes do not modify substantially the dispositions of the present protocol. However, the modification of the protocol or of Appendix B shall not affect the process of the procedure of request".

Article 14 establishes the provisional application "thirty days after its signature and it shall come into force in the day of the last written notification of the parties, by diplomatic means, indicating that the domestic requirements for its coming into force have been fulfilled".

Like the Bolivian agreement, this one was also published in the Oficial State Bulletin reiterating the will to constitute it as an agreement subject to international law.

III. CONCLUSION

The 1993 Convention of The Hague establishes a hierarchy of the principles of the child’s wellbeing, and it also coincides with the principles established in the 1989 Convention on the Child’s Rights, which are the basis of its co-operation framework:

a) Enabling the child to remain in the care of his or her family of origin (Preamble, paragraph 2 of the 1993 Convention of The Hague).

b) Finding a suitable family in the State of origin (Preamble, paragraph 3, 1993 Convention of The Hague).

c) Adoption between countries according to the 1993 Convention of The Hague.

d) No-family alternatives inside and outside the country of origin.

The co-operation framework established by the 1993 Convention of The Hague, as Hans van Loon states, has a primary significance, which consists in assuring that this hierarchy is respected and that the protection measures, the procedures and the institutions covered in the 1993 Convention of The Hague coincide with such hierarchical order, whose sole aim is to protect the original identity and the personal identity of the child. This way, the Convention strengthens, in the first place, the need, in the best interest of the child, of keeping his family ties, his cultural and national identity, and in the second place, also in the child’s best interest, it covers the change of identity when the child is transferred from one family, cultural and national environment, to another.

It is a convention with evident loopholes, but also perfectible, which does not apply to those "adoptions" legal institutions that do not create a family tie between the adopted and the adoptants, as is the case of, for example, the Muslem kafala to be left, therefore, outside the material scope of the 1993 Convention of The Hague, reason why it has been qualified, as Calvo Caravaca points out, as a scarcely multicultural convention.

It is a convention with the best theoretical intentions still pending in the everyday practice, and its adoption by the Contracting States that intervene in certain process of adoption. A convention that tries to establish a balance between its regulation and the respect towards the autonomy both at the level of State responsibility and of the individual people involved in adoption, and a Convention in which, through the protocols or bilateral agreements included in article 39.2, have a direct influence in the practice of intercountry adoptions by Spaniards, in this case, by relating the most relevant "exporting" countries of children to Spain.

From the technical point of view, bilateral agreements seem to be a very adequate instrument so that the adoptions concluded under it, are carried out with all the guarantees and at the child’s best interest. Perhaps with some protocols or bilateral agreements we may not reach, in quantitative terms, a significant number of intercountry adoptions between both countries, but what is truly created, in qualitative terms, are guaranties in the constitution of such adoptions.

Finally, with respect to the qualification and legal nature of the agreement itself, we conclude that given the diversity of alternatives exposed, undoubtedly the technically most satisfactory choice is abandoning the nominalistic and formalistic prejudices in order to be placed before the substance of the activities implied. That is, the content of the agreements would be one that would allow to unveil the conventional or merely declaratory, promotional, that is, "non-normative" nature of the actions, regardless their conclusion by diplomatic or administrative bodies strictu sensu, or administrative decisions that involve the assumption of obligations to the contracting bodies in which case are true international treaties or contracts between administrations, being submitted to each of the contracting parties’ Law.

What we cannot set into question is that the 1993 Convention of The Hague has had a great influence in the international ambit, because it has created a co-operation policy on intercountry adoption, not only between the Contracting States of the Convention, but between the States that have not signed or ratified it yet, having influence on the introduction of the figure of central authorities and even restructuring the organization and operation of its adoption agencies over the basis of the 1993 Convention’s model; besides encouraging the signing of bilateral agreements on intercountry adoption, based, as well, on the model of the 1993 Convention of The Hague.

If we intend to have another data that indicates the acceptance of the 1993 Convention of The Hague, we only need to add that the United Nations Committee on the Child’s Rights has approved this Convention and it recommends its ratification by the States.

Notes
* This article is part of the research carried out during the period of the author as a visitor researcher in Spain, for which she received support from the General Direction of Academic Personnel Matters (DGAPA) of the UNAM, within the Program of Support for the Improvement of the Academic Personnel (PASPA), with the project whose title is "Protocol on intercountry adoption between Mexico and Spain". An advance of this article could be found published with the same title in Calvo Caravaca, Alfonso-Luis and Castellanos Ruiz, Esperanza (dirs.), El derecho de familia ante el siglo XXI: Aspectos internacionales, Madrid, Colex, 2004, pp. 427-467. Translated by Ingrid Berlanga Vasile.
**Researcher at the Legal Research Institute.
1 Pérez Beviá, J. A. and García Cano, S., "Contribución de la Conferencia de la Haya a la globalización de los derechos del niño", in Calvo Caravaca, A. L. and Blanco-Morales Limones, P. (coords.), Globalización y derecho, Madrid, Colex, 2003, pp. 463 and 464.
2 Alegría Borrás, explains "the limitations of the United Nations Convention of Child’s Rights, are the lack of certainty of the obligations it imposes which is undoubtedly the reason why it has had so many ratifications in such a short period of time, because the more precise a convention is, and the stricter the obligations derived from it, the bigger the difficulties to its coming into force are, and ultimately, to its efficience", Borrás Rodríguez, A., "El ‘interés del menor’como factor de progreso y unificación del derecho internacional privado", Revista Jurídica Catalana, 1994, p. 925. About the United Nations Convention on Child’s Rights of 1989, see Díaz Barrado, "La convención sobre los derechos del niño", Estudios jurídicos en conmemoración del X Aniversario de la Facultad de Derecho, Córdoba, vol. I, 1991; Miralles Sangro, P. P., "La ratificación por España de la Convención de Naciones Unidas sobre los Derechos del Niño", Actualidad Civil, 1991, no. 39; Bret, J. M., "La Convention des Nations Unies sur les droit de l’enfant: un texte aplicable et appliqué en France", Gaz du Pal, 1991; Rodríguez Benot, A., "La protección jurídica del menor en la Convención sobre los Derechos del Niño de 20 de noviembre de 1989", REDI, 1992, no. 2.
3 Loon, J. H. A. van, "Rapport sur l’adoption d’enfants originaires de l’etranger. Document préliminaire 1 d’avril 1990", Actes et Document de la Dix-septième session, Conference de La Haya de Droit International Privé, 1994, vol. II, pp. 22-56; id., "International Co-operation and Protection of Children with Regard to Intercountry Adoption", RCADI, 1993, vol. VII, pp. 214 and subsequent.
4 González Martín, N., "Adopción internacional", Diccionario Jurídico Mexicano, Mexico, UNAM, 2003.
5 Roca, E., Familia y cambio social, Madrid, Civitas, 1999, p. 255, cited by Guzmán Zapater, M., "Adopción internacional: ¿cuánto queda del derecho internacional privado clásico?", in Calvo Caravaca A. L. and Iriarte Ángel, J. L. (eds.), Mundialización y familia, Madrid, Colex, 2001, p. 83.
6 In this article we only refer to Spain, because its title is given because the analysis, we Intend. To carry out this time, is about this bilateral Spaniard practice. For a general view about the Mexican perspective, see Pereznieto Castro, Leonel, "Algunos aspectos del derecho familiar en México y otros países de Latinoamérica", in Calvo Caravaca, Alfonso Luis and Castellanos Ruiz, Esperanza (dirs.), El derecho de familia ante el siglo XXI. Aspectos internacionales, Madrid, Colex, 2004, pp. 11-22, specially 11-16; Silva, Jorge Alberto, "El impacto de los convenios internacionales sobre la legislación interna mexicana relativa a la adopción internacional de menores", Revista de Derecho Privado, Mexico, new epoch, vol. II, no. 4, Jan-April, 2003, pp. 151-195; Siqueiros Prieto, José Luis, "La Convención relativa a la Protección de Menores y a la Cooperación en Materia de Adopción Internacional", Jurídica. Anuario del Departamento de Derecho de la Universidad Iberoamericana, Mexico, no. 23, 1994; id., "La adopción internacional de menores", Revista de Investigaciones Jurídicas, Mexico, vol. 17, no. 17, 1993; id., "La cooperación judicial internacional. Expectativas para el siglo XXI", Revista Mexicana de Derecho Privado, Mexico, special issue, 2000; González Martín, Nuria and Rodríguez Benot, Andrés (coords.), Estudios sobre adopción internacional, Mexico, UNAM-Instituto Investigaciones Jurídicas, 2001.
7 Aguilar Benítez de Lugo, M., "La cooperación internacional como objetivo del derecho internacional privado", Cursos de derecho internacional de Vitoria-Gastéiz, 1991, pp. 171 and subsequent; id., "La cooperación internacional en derecho internacional privado", La cooperación internacional, XIV Jornadas de Profesores de Derecho internacional y Relaciones Internacionales (Vitoria, 26-28 of September 1991), Bilbao, Universidad del País Vasco, 1993, pp. 221 and subsequent, cited by Rodríguez Benot, A., "Tráfico externo, derecho de familia y multiculturalidad en el ordenamiento español", in several authors, La multiculturalidad. Especial referencia al Islam, Escuela Judicial, Consejo General del Poder Judicial, 2002, Cuadernos de Derecho Judicial, vol. VIII, p. 53.
8 "The bilateral conventional policy referred emerges with a different spatial vocation, different purposes and material application scope, they use different techniques and types of norms in its wording, and basically, successfully reach certain real efficiency". García Cano, Sandra, "Globalización, multiculturalismo y protección internacional del menor (evolución y futuro de los instrumentos jurídicos internacionales relativos a la protección del menor)", in Adam Muñoz, Ma. Dolores and García Cano, Sandra (dirs.), Sustracción internacional de menores y adopción internacional, Madrid, Colex, pp. 9-29.
9 BOE, no. 40, February 16, 1988. Correction of errors BOE of September 24, 1992.
10 BOE, no. 207, August 29, 1985.
11 BOE, July 20, 1991. Correction of errors BOE of August 13, 1991.
12 BOE, no. 155, June 30, 1994.
13 Gaceta de Madrid, April 28, 1909.
14 BOE, no. 290, December 3, 1988.
15 BOE, no. 26, January 31, 1994.
16 BOE, no. 63, March 14, 1970.
17 BOE, January 3, 1991. Correction of errors BOE January 23, 1991.
18 BOE, no. 273, November 15, 1997.
19 BOE, no. 150, June 24, 1997.
20 BOE, May 9, 1989. Correction of errors BOE May 6, 1991 and September 20, 1991.
21 BOE, June 5, 1997.
22 BOE, April 30, 1998.
23 Cuartero Rubio, Ma. V., "Adopción internacional y tráfico de niños", BIM, no. 1840 (March 1st, 1999), p. 408; Adroher Biosca, S., "Marco jurídico de la adopción internacional", in Gil-Robles Gil-Delgado, J. M. et al., Puntos capitales de derecho de familia en su dimensión internacional, Madrid, Dykinson, 1999, p. 107.
24 Besides the various works cited along this article, we recommend the research on this topic in Adroher Biosca, S., "La adopción internacional: una aproximación general", in Rodríguez Torrente, J. (ed.), El menor y la familia. Conflictos e implicaciones, Madrid, Universidad Pontificia de Comillas, 1998, pp. 209-304; Aguilar Benítez de Lugo, M. and Campuzano Díaz, B., "El certificado de idoneidad para las adopciones internacionales desde la perspectiva del derecho internacional privado", BIMJ, no. 1888 (March 1, 2001), pp. 5-30; Álvarez González, S., Adopción internacional y sociedad multicultural, Madrid, Tecnos, 1999, 211 pp.; Borrás Rodríguez, A., "El papel de la autoridad central: los Convenios de La Haya y España", REDI, vol. XLV, 1993, pp. 63-79; Calvo Caravaca, A. L. and Iriarte Ángel, J. L. (eds.), Estatuto personal y multiculturalidad de la familia, Madrid, Colex, 2000; id., Mundialización…, cit., note 5; Calvo Caravaca, A. L. and Blanco-Morales Limones, P. (coords.), Globalización…, cit., note 1; González Beilfuss, C., "La aplicación en España del Convenio de La Haya de 29 de mayo de 1993 relativo a la protección del niño y a la cooperación en materia de adopción internacional", Revista Jurídica Catalana, no. 2, 1996, pp. 9 and subsequent.; González Martín N. and Rodríguez Benot, A. (coords.), op. cit., note 6; Loon, J. H. A. van, "Internacional Co-operation and Protection of Children with Regard to Intercountry Adoptions", RCADI, 1993, vol. VII, pp. 191-456; id., "Rapport sur l´adoption d´enfants originaires de l´étranger", Actes et documents de la dic-septiéme session. 10 au 29 mai 1993, vol. II: Adoption-cooperation, The Hague, Netherlands, Conference de La Haye de Droit Internacional Privé, Edit. Permanent Bureau of the Conference, 1994; Meyer Fabre, N., "La Convention de La Haye du 29 mai 1993 sur la protection des enfants et la coopération en matière d’adoption internationale", RCDIP, 1994, no. 2, pp. 259-295; Rodríguez Benot, A., "Ley 18/1999, de 18 de mayo, de modificación del artículo 9, apartado 5o. del Código Civil en materia de adopción internacional", REDI, 1999, no. 2, pp. 810-818; id., "La protección de los menores extranjeros en la comunidad autónoma de Andalucía", in Rodríguez Benot, A. and Hornero Méndez, C. (eds.), La protección del menor en Andalucía. Tres estudios sobre la ley andaluza de los derechos y la atención al menor, Granada, Comares, 2000, among others.
25 Adroher Biosca, S., "Desafíos del derecho de familia en una sociedad intercultural", Familia e interculturalidad, Universidad Pontificia de Salamanca, 2003, col. Estudios familiares, no. 13, pp. 315-363.
26 Since the beginning of the 20th century, the "childhood" century, there are many international legal instruments concluded within the framework of the protection to the child, both at the universal level (Child’s Rights Charter —1924—, Universal Declaration of Child’s Rights —1959—, United Nations Convention on Child’s Rights —1989—, Facultative Protocols of the Child’s Rights Convention —2000—, and through the Conference of The Hague of Private International Law, the Conventions of The Hague of June 12, 1902 on Guardianship of Children; of October 5, 1961, about Competence of the Authorities and the Applicable Law on Protection to Minors; of October 19, 1996 relative to the Competence, applicable Law, Recognition, Execution, and Co-operation on Parental Responsibility and of Measures of Protection of Children; of October 25, 1980, about the Civil Aspects of Intercountry Subtraction of Children; of November 15, 1965, related to the Competence of Authorities, Applicable Law and Recognition of Decisions on Adoption; of May 29, 1993 related to the Child Protection and The Co-operation on Intercountry Adoption; of October 24, 1956 on the applicable law to the Alimony Obligations with respect to Children, and of April 15, 1958, related to the Recognition and the Execution of Decisions on Alimony Obligations with respect to Children) as well as at a regional level (in America: Bustamante Code made in La Habana, February 20, 1928, International Civil Law Agreement concluded in Montevideo on 1940, and the Inter American conferences: I. C. About Conflict of Laws on Child Adoption, concluded in la Paz on May 24, 1984 —CIDIP-III—; I. C. About Child restitution, approved in Montevideo on June 15, 1989 —CIDIP-IV—; I. C. About International Trade of Children, approved in Mexico on March 18, 1994 —CIDIP-V—. In Europe: European Council and its European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950; European Convention about Child Adoption, from April 24, 1967; European Convention on Child Repatriation, of May 28, 1970; European Convention on the Legal Statute of Children born outside Marriage, of October 15, 1975, European Convention Relative to the Recognition and Execution of Resolutions on Custody, as well as the reestablishment of such custody on March 20, 1980, European Convention on the Enforcement of the Child’s Rights, of January 25, 1996, and European Convention on the Personal Relations of the Child, of October 14, 2002. European Union: Regulations (CE) no. 1347/2000 of the Council, of May 29, 2000, related to the competence, recognition and execution of judicial resolutions in marriage and parental responsibility on the common children). García Cano, S., "Globalización, multiculturalismo…", cit., note 8. See also Overbeck, A. E. von, "L´intérêt de l’enfant et l’êvolution du droit international privé de la filiation", Liber Amicorum Adolf F. Schnitzer, 1979, pp. 361-380; Moya Escudero, M., Aspectos internacionales del derecho de visita de los menores, Granada, Comares, 1998, pp. 6 and 7.
27 With respect to the unavoidable flaws of the Convention and to the legal problems it entails, especially in the sectors of recognition and the transformation of adoptions, compared to the technical but useless perfection of the 1965 Convention. M. Droz expressed as follows: "La seule chose que je voudrias dire, est que vous avez parlé de la Convention de 1965 qui, effectivement, n’a pas très bien marché, elle n’est en vigueur que dans trois Etats, c’est à dire le Royaume-Uni, la Suisse et l’Autriche, les trois Etats où il n’y a pas d’enfant adoptable, ce qui fait que c’etait une belle Rolls Royce pour traverser le désert du Tiers Monde. Alors, nous avons préféré faire une quatre-quatre un peu de bric et de broc pour essayer de passer le désert" (you have referred to the 1965 Convention, which has effectively not done quite good, and that has only come into force in three States: United Kingdom, Switzerland, and Austria, where there are no adoptable children. This meant that a nice Rolls Royce had been made to pass through the desert of the Third World. Here we preferred to elaborate a four by four, a couple from here and a couple from there in order to cross the desert) cited by Calvo Babío, Flora, Reconocimiento en España de las adopciones simples realizadas en el extranjero, Madrid, Dykinson, 2003, p. 76. Cfr. debate after the communication of Muir Watt, H., "La Convention de la Haye du 29 mai 1993 sur la protection des enfants et la coopération en matière d’adoption internationale", Travaux Com. fr. dr. Int. Pr., Paris, 1993-1995, p. 63.
28 Calvo Caravaca, A. L., "Globalización y adopción internacional", in Calvo Caravaca, A. L. and Blanco-Morales Limones, P. (coords.), Globalización…, cit., note 1, pp. 25 and subsequent; Carrillo Carrillo, B. L., Adopción internacional y el Convenio de La Haya de 29 de mayo de 1993, Granada, Comares, 2003, pp. 4 and subsequent.
29 17th session —plenary session— Act no. 5 "Informe del secretario general sobre la cuestión de la adopción internacional de niños", pp. 271 and 272. We suggest to read Trillat, B., "Una migration singuliére: l´adoption internationale", in Adoption des enfant etrangers, Seminaire Nathalie-Hasse May 25-27, 1992, Paris, Edit. Centre International de l’Enfance, pp. 15-238.
30 "Memoria sobre la preparación de un nuevo Convenio sobre la Cooperación Internacional y la Protección del Niño en Materia de Adopción Internacional", elaborated by the Permanent Office, November 1989, pp. 1 and 2.
31 Verwilghen, M., "La genèse d’une Convention sur l’adoption d’enfants originaires de l’étranger", RBDI, 1991, no. 2, pp. 438-468.
32 Spain has signed six protocols: with Romania, April 2, 1993; with Peru, November 21, 1994; with Colombia, November 13, 1995; with Ecuador, March 18, 1997; with Bolivia, October 29, 2001 (this last one substitutes the two previous agreements from April 5, 1995 and May 21, 1997) Official State Bulletin, no. 304, of December 20, 2001; and with The Philippines, November 12, 2002, Official State Bulletin, no. 21, of January 24, 2003 and coming into force Official State Bulletin, no. 265, of November 5, 2003.
33 Source: Ministry of Labor and Social Matters http://www.mtas.es.
34 In fact, eyes are set on African countries like Namibia, Madagascar or Nepal, among others; and Asian countries like Vietnam or Thailand. There are also countries from Eastern Europe like Moldova or Kazajstan. González Beilfuss, C., "El protocolo de adopción internacional entre el Reino de España y la República de Filipinas", Revista Española de Derecho Internacional, Spain, 2003-1, vol. LV, pp. 585-589.
35 With respect to the countries that are signatories of the protocols, we had in 2001: Bolivia, 18; Colombia, 319; Ecuador, 16; Peru, 71. The total amount of them, 424 adoptions, represents more than 50% of the adoptions made in Latin America. Source: Spaniard consulates in other countries. Ministry of Labor and Social Matters http://www.mtas.es.
36 With respect to Romania, country that is signatory of one of the protocols we mentioned, a total or 373 adoptions were concluded.
37 In 2001, the information launched by the Ministry of Labor and Social Matters in its website, previously mentioned, shows that regarding the Philippines —country from the Asian continent, thus object of a protocol that was recently signed with Spain, and that we shall comment further— no adoption was concluded. We shall take into account that this country makes 400 annual allocations. Check the statistics given by the central authority, the Inter-Country Adoption Board (ICAB) in its website, http://www.skyinet.net.
38 With respect to the legal nature, see Calvo Babío, F., "Naturaleza y alcance de los protocolos de adopción suscritos entre España y Colombia, Bolivia, Ecuador y Perú", Revista Española de Derecho Internacional, vol. 0, 2000, pp. 455-464; id., "Reconocimiento en España de las adopciones constituidas en Rumania: situaciones patológicas", La Ley, no. 4628, September 15, 1998, pp. 1-4; Esplugues Mota, C., "Conclusión por parte de España de cuatro protocolos sobre adopción internacional", Revista Española de Derecho Internacional, 1996-2, pp. 336-340; Iriarte Ángel, J. L., "Adopción internacional", in Calvo Caravaca, A. L. et al., Derecho internacional privado, 2nd ed., Granada, Comares, vol. II, pp. 146 and 147; González Beilfuss, C., "El protocolo de adopción internacional…", cit., note 34.
39 Article 39: "2. Any Contracting State may enter into agreements with one or more other Contracting States, with a view to improving the application of the Convention in their mutual relations. These agreements may derogate only from the provisions of articles 14 to 16 and 18 to 21. The States which have concluded such an agreement shall transmit a copy to the depositary of the Convention".
40 Álvarez Rubio, J. J., "La interpretación y la traducción de las normas convencionales en el marco de la cooperación jurídica internacional", Anuario Español de Derecho Internacional Privado, vol. 0, 2000, p. 222.
41 In the 17th session, The Hague, May 10-29, 1993, was expressed that "it should be spoken about the historical background, without making judgments about such background being more or less important. In the session, it was mentioned as most important, those factors related to the Nordic countries, States of the European Union and the States that emerged from the former Union of Socialist Soviet Republics, Czechoslovaquia and Yugoslavia, and to a less extent were considered those relations between Canada and the United States of America, or between the United States and Mexico". Explanatory report Parra-Aranguren, Convention on Child Protection and Co-operation on Intercountry Adoption, from May 29, 1993, text adopted by the Seventeenth Session, The Hague, The Netherlands, Permanent Office of the Conference, p. 132.
42 Article 25: "Any Contracting State may declare to the depositary of the Convention that it will not be bound under this Convention to recognize adoptions made in accordance with an agreement concluded by application of Article 39, paragraph 2".
43 Article 48: "The depositary shall notify the States Members of the Hague Conference on Private International Law, the other States which participated in the Seventeenth Session, and the States which have acceded in accordance with article 44:… e) the agreements referred to in Article 39".
44 Explanatory Report Parra-Aranguren…, cit., note 41, p. 100. The declaration shall be addressed to the depositary of the Convention, the Ministry of Foreign Affairs of the Kingdom of The Netherlands, which shall inform the mentioned States in article 48. on the other hand, article 25 does not specify when shall the declaration is to be made, reason why two suppositions may emerge: 1. When a State gets to be part of the Convention and the rest of the Contracting States have already concluded the agreements allowed by paragraph 2 of article 39; then, the declaration shall be made in the moment of the ratification, acceptation, approval or assent to the Convention. It is also possible to do it afterwards, but then the declaration shall only cause effects in the future, and the third Contracting State shall be compelled to recognize, in accordance with the Convention, the adoptions made, according to these agreements, once the new Contracting State gets to be part of the Convention, and previous to the declaration. 2. When a state that is already party of the Convention because a Contracting State and one or more counter-party States conclude the agreements authorized by paragraph 2, article 39; in this case, the declaration shall be made as son as possible, since the very moment the third Contracting State receives the notification from the depositary, prescribed by article 48 d).
45 Ibidem, p. 101.
46 Idem.
47 Explanatory report Parra-Aranguren…, cit., note 41.
48 "Rapport Parra-Aranguren", Actes et Documents de la Dix-septième Session de la Conference de la Haye de Droit International Privé, vol. II, pp. 641 and 642.
49 Idem; Explanatory Report Parra-Aranguren…, cit., note 41, p. 133; Bureau Permanent, "Conclusions de la Commission spéciale de juin 1990 sur l’adoption d’enfants originaires de l’etranger, Document preliminarie núm. 3 d’aout 1990", Actes et Documents de la Dix-septiénme Session, vol. II, Conférence de La Haye de Droit International Privé, 1994, pp. 128-135.
50 Explanatory Report Parra-Aranguren…, cit., note 41, p. 134.
51 Idem.
52 It does not refer, given the date of its article, to the most recent ones signed with Bolivia and the Philippines. About the Law of the treaties we recommend reading several articles published by Sáez de Santamaría; specially Sáez de Santamaría, P. Andrés, "Jurisprudencia española de derecho internacional público", REDI, vol. XLIV, 1992, no. 1, pp. 131-135.
53 Marina Hernando, A., "La adopción internacional. El tráfico internacional de menores. Mecanismos de protección y control", Infancia y Sociedad. Revista de Estudios, no. 33, 1995.
54 Remiro Brótons, A., "De los tratados a los acuerdos no normativos", in various authors, La celebración de tratados internacionales por España: problemas actuales. Actas del Seminario organizado por el Ministerio de Asuntos Exteriores, el Ministerio de Relaciones con las Cortes y de la Secretaría de Gobierno y el Instituto Nacional de Administración Pública, Madrid, 1990, p. 38. We shall remember, on the other hand, the verdict of the State Council number 55.253 of November 1990 which expressed: "Not every action of execution of an agreement commonly agreed by the bodies of the public administrations of the Contracting Parties constitutes an international convention... for there are plenty of treaties whose execution is not made unilaterally by each of the contracting States, but it is entrusted to the constant collaboration between the public administration bodies, of such competent States in the subject of the treaty. It could be said that in these cases, the Convention, concluded after a negotiation and an agreement, leads, during its execution, to a continuous process of negotiation and agreement since it takes place at an administrative level, that is, between bodies that lack representation to oblige the State through international treaties. These agreements between the administrative organs of the parties that are competent given their subject, may be included in the corresponding main treaty, which shall generally name the organs it shall contract and delimit the contents of the prospective agreement".
55 Calvo Babío, F., "Naturaleza y alcance…", cit., note 38, pp. 38 and 39. This last requirement has not been fulfilled by several protocols or bilateral agreements commented here.
56 Remiro Brótons, A., Derecho internacional público, t. 2: Derecho de los tratados, Madrid, 1987, p. 39.
57 Eisemann, P. M., "Le Gentlemen’s Agreement comme source du Droit Internacional", Journal du Droit International, 1979, no. 1, pp. 326-348; Remiro Brótons, A., "De los tratados a los acuerdos no normativos…", cit., note 54, pp. 42 and 43; Calvo Babío, F., "Naturaleza y alcance…", cit., note 38, p. 463.
58 Calvo Babío, F., Reconocimiento en España…, cit., note 27, p. 89.
59 Part of the doctrine that has studied it, expresses the idea that the agreements with "Romania, Ecuador, Peru and Colombia, set questions about their legal nature, because they do not seem to be true international agreements, which would be seen, for example, in the fact that they were not published in their date in the Official State Bulletin, neither they seem to be non-normative actions", González Beilfuss, C., "El protocolo de adopción internacional…", cit., note 34.
60 Otherwise, we would have to determine its position with respect to the agreements in force. The doctrine expresses, basically, a positive attitude towards the Philippines’ agreement and its character of "treaties subject to international law" and a negative attitude towards the Bolivian agreement, for not considering it, as well as a "treaty subject to international law".
61 Marina Hernando, A., "La adopción internacional…", op. cit., note 53.
62 González Beilfuss, C., "La aplicación en España…", cit., note 24, pp. 38 and 39.
63 Herrán, A. I., Adopción internacional, Madrid, Dykinson, 2000, p. 23.
64 Explanatory Report Parra-Aranguren…, cit., note 41, pp. 129-131.
65 Herrán, I., op. cit., note 63, pp. 20-23.
66 González Beilfuss, C., "La aplicación en España…", cit., note 24, p. 38, he calls them executive agreements (acuerdos interinstitucionales). Esquivias Jaramillo calls them interstate agreements (acuerdos interestatales) and states that they are a "specific complement to the 1993 Convention of The Hague, which have their own spirit and raison d’etre, and because their considerations are not so unequal". Esquivias Jaramillo, J. I., Adopción internacional, Madrid, Colex, 1998, p. 25.
67 Orejudo Prieto de los Mozos, P., "El certificado de idoneidad de los adoptantes en el marco de la prevención del tráfico internacional de menores (con especial referencia a las adopciones rumanas)", Aranzadi Civil, no. 12, October, 1998, pp. 20 and subsequent; López Orellana, I., "La adopción internacional", RGD, July-August, 1996, pp. 8036-8038; Zugravescu, A. et al., "La adopción internacional en Rumania", Infancia y Sociedad. Revista de Estudios, Ministry of Social Matters, November-December 1991, no. 12, pp. 111 and 122, where the authors expose the immediate happenings after Ceaucescu’s fall, such as the "liberalization" of intercountry adoption, which lead to an imminent traffic of children (10,000 Romanian children went out of the country between August 1st, 1990 and July 17, 1991), p. 113; about the subsequent legislative development and the functions of the Romanian Committee of Intercountry adoptions, see p. 120.
68 Esplugues Mota, C., "Conclusión por parte de España…", cit., note 38, p. 337.
69 Herrán, A. I., op. cit., note 63, p. 21.
70 About the processing of intercountry adoptions through the Romanian Committee of Intercountry Adoptions, see Orejudo Prieto de los Mozos, P., op. cit., note 67, pp. 21 and 22.
71 When doctrine uses the term "private", it always has in mind those adoptions which have implicit some illicit action.
72 Likewise, the doctrine understands by independent adoptions, those which the particulars process without the intervention of a Collaborating Entity of International Adoption, ECAI, but always together with the administration, with the central authority of its country of residence, which processes its certificate of suitability and gives it the information it has about the requirements demanded in the State of origin chosen by the requesters.
73 We shall not forget that it is a bilateral agreement conceived for the adoption of Romanian children, considering only Romania as a State issuer of children.
74 We shall point out that at present there is a convention between Spain and Romania, which complements the convention on the civil procedure concluded in The Hague, on March 1st, 1954, made ad referéndum in Bucharest on November 17, 1997, coming into force on February 10, 1999, which facilitates the notification of documents and the execution of rogatory commissions on civil and merchantile issues between both Contracting States.
75 Spain ratified it on July 11, 1995; coming into force on November 1st, 1995.
76 Romania ratified it on December 28, 1994, coming into force on May 1st, 1995.
77 As an example, we have that the 1993 Convention of The Hague covers, in the spatial ambit, the possibility of concluding the adoption both in the country of origin and in the receiving one. The Protocol of Romania breaches this precept of the Convention.
78 In the Protocol of Peru we commented, as well as in the following, Colombia’s, are contained the same ideas not only in this first chapter, but in the three remaining ones, in fact, many of the references shall sometimes repeat, and others will be considered as already commented in order not to reiterate.
79 Article 2.1 of the 1993 Convention of The Hague expresses, about intercountry adoption, as follows: "1. The Convention shall apply where a child habitually resident in one Contracting State ("the State of origin") has been, or is to be moved to another Contracting State ("the receiving State") either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin". This way, a majority doctrine is pronounced understanding by intercountry adoption the legal action concluded by people which habitually reside outside the national territory, regardless that they are citizens from another country or not. It is enough that they have their habitual residence outside the national territory, in order to intercountry adoption take place. Some authors consider the various international elements (nationality, citizenship, residence, etc.) which may be related to intercountry adoption to qualify it or not, as such; as an example, see Bouza Vidal, N., "La nueva Ley 21/1987, de 11 de noviembre, sobre adopción y su proyección en el derecho internacional privado", RGLJ, 1987, t. II, p. 921, considers nearly fourteen different suppositions of intercountry adoption, authorized by the authority in Spain, taking into account, as international elements that give them the foreign character, only nationality and residence of adoptant and adopted.
80 The possibility would not be so preposterous if we were talking about children from the former Spaniard Western Sahara or Palestine. The real problem, when talking about these children in stateless situation, is to solve the issue about which is the applicable law when concluding their adoption, responding to the child’s best interest. Calvo Caravaca considers that it is not legal to apply the national law of the child, since he or she lacks nationality and this way, the interest in the validity of the adoption in the child’s nationality, fades away. Id., "Globalización y adopción internacional", in Calvo Caravaca, A. L. y Blanco-Morales Limones, P. (coords.), Globalización…, cit., note 1, p. 31. Perhaps the most logic and feasible solution would be to apply, in this case, the law of the child’s receiving State.
81 Stateless people are basically nomadic individuals; individuals whose parents are born stateless; individuals who settle in a territory without allowing the law of that place to absorb them at least during a reasonable period of time; and individuals who have lost their nationality, either voluntarily (as for instance, marrying a foreigner in certain countries), or as punishment (individuals who committed an action which, in their country, is cause of loss of nationality without having acquired another one). González Martín, N., Régimen jurídico de la nacionalidad en México, México, UNAM, Instituto Investigaciones Jurídicas, 1999, Cuadernos Constitucionales Mexico-Centro América, no. 33, pp. 81 and 82.
82 The 1993 Convention of The Hague expresses that there are indelegable functions of the central authorities: 1. Cooperation and promotion of collaboration (article 7.1); 2. Appropriate measures to provide information as to the laws of their States concerning adoption (article 7.2); 3. Receiving information from the personnel that intervenes in adoption (article 33). Likewise, the 1993 Convention itself, establishes another kind of functions which are susceptible of delegating the central authorities, such as the measures on the control of improper material benefit (article 8), or those related to the reception of the intercountry adoption request (article 14, related to article 22.1 of the 1993 Convention of The Hague) among others. See about this topic, Carrillo Carrillo, B. L., Adopción internacional…, cit., note 28, pp. 87-91.
83 See the comments about its sixth article.
84 Explanatory report of G. Parra-Aranguren, Convention of May 29, 1993…, op. cit., note 41, pp. 79 and 80.
85 Another issue is that the States involved shall have to give their corresponding proposals and authorizations simultaneously, issue which is not mentioned at all.
86 We shall further refer to this topic when we talk about the matching.
87 About this, we suggest reading Calvo Babío, F., Reconocimiento en España…, cit., note 27; Carrillo Carrillo, B. L., Adopción internacional…, cit., note 28; García Cano, S., Protección del menor y cooperación internacional entre autoridades, Madrid, Colex, 2003; Rodríguez Benot, A., "El reconocimiento de las medidas de protección del menor en un entorno multicultural (un estudio comparado de la eficacia extraterritorial de la adopción y de la kafala)", RGD, no. 667, April 2000, pp. 4419-4447; id., "La eficacia extraterritorial de la adopción simple (el reconocimiento en España de las adopciones simples constituidas al amparo de ordenamientos iberoamericanos)", in González Martín, N. and Rodríguez Benot, A. (coords.), op. cit., note 6, pp. 365-389.
88 Herrán, A. I., op. cit., note 63, p. 23.
89 In fact, in many countries of origin, their procedure includes that there shall be a stage of living together, previous to the beginning of the judicial process, of not less than one web nor more than two, in the Mexican case, in which the adaption of the child and his or her prospective adoptive parents could be facilitated, empathy emerging between them.
90 Esplugues Mota, C., "Conclusión por parte de España…", cit., note 38, p. 340.
91 López Orellana, I., op. cit., note 67, pp. 8027-8067; Lozano Pinto, Y., "La nueva regulación de la adopción en el derecho colombiano", Anuario de Derecho Civil, 1996, vol. III, t. XLIX, pp. 1183-1189.
92 Herrán, A. I., op. cit., note 63, p. 22.
93 The 1993 Convention of The Hague is also applied to simple or less full adoptions, that is, adoptions that do not entail the breaking of relations between the adoptant and the family of origin. Both adoptions, as the full one, include the establishment of a family tie. The application of the 1993 Convention of The Hague shall not limit to full adoptions. Calvo Caravaca, A. L., "Globalización y adopción…", in Calvo Caravaca, A. L. and Blanco-Morales Limones, P. (coords.) , Globalización…, op. cit., note 1, p. 48.
94 People under eighteen, following, once again, the 1993 Convention of The Hague.
95 It is not left "to the exclusive discretion of the competent authorities of the State of origin, the most crucial stage of the adoption process", what González Beilfuss, C., regretted in "La aplicación en España…", cit., note 24, p. 39.
96 Herrán, A. I., op. cit., note 63, p. 21.
97 Calvo Caravaca, A. L., "Globalización y adopción…", cit., note 28, p. 36.
98 González Beilfuss, C., "La aplicación en España…", cit., note 24, p. 39.
99 Still being an agreement previous to the 1993 Convention of The Hague’s ratification.
100 We remit to the comments exposed in: 3. Considerations of the legal nature of bilateral agreements.
101 González Beilfuss, C., "El protocolo de adopción internacional…", cit., note 34.
102 Spain ratified the 1993 Convention of The Hague on November 1st, 1995, and Philippines in November 1st, 1996.
103 However, also the family sometimes becomes the perturbing element in the child’s development, provoking actions that harm his or her rights. For this reason, society shall not remain passive towards this type of situation, encouraging the set into practice of the necessary mechanisms to protect the child’s rights. See Preamble, Andalucía. Decreto 282/2002 de 12 de noviembre de Acogimiento Familiar y Adopción, Boletín Oficial de la Junta de Andalucía, no. 135, from November 19, 2002. Correction of errors Boletín Oficial de la Junta de Andalucía, no. 137, from November 23, 2002.
104 Professor González Beilfuss considers, contrarily, that "Even when the Convention (of The Hague, 1993) does not prevent a State from belonging simultaneously to both categories, the legal effect of the subsidiarity principle which establishes that preference, is to be given to the child’s allocation in a family from his or her habitual residence State... this hinders the same State from having this bifrontal character, unless exceptional circumstances". González Beilfuss, C., "La aplicación en España del Convenio de La Haya…", cit., note 24, p. 315.
105 González Beilfuss, C., "La aplicación en España…", cit., note 24, pp. 9-41; id., "El protocolo de adopción…", cit., note 34.
106 Idem.
107 The delegation of faculties in duly accredited organisms takes place only in Contracting States as a conventional faculty, and never as a duty. In this sense, each of them may choose between the models stated by the norm: 1. Participative system of authorities, in which the accredited bodies intervene imperatively (for example, Romania); 2. Articulated system exclusively by means of the public authorities (for example, Panama, sui generis cases like Philippines or Costa Rica); 3. Dualistic system that allows both previous options (for example, Spain). García Cano, Sandra, Protección del menor…, cit., note 87, pp. 143 and 145.
108 There are a couple of indelegable functions that shall be carried out by the respective public entities, such as: expedition of the suitability certificate, adoptability report, and when the child’s country of origin demands it, issuing of the follow-up compromise. Ibidem, p. 148. See also Carrillo Carrillo, B. L., Adopción internacional…, cit., note 28, pp. 87-91.
109 All the Autonomous Communities have legislated on child protection: Andalucia, Regulation of Child’s Rights and Attention Act 1/1998, April 20 (BOE, no. 150, June 24, 1998); Aragon, Child Protection Act 10/1989, December 14 (BOE, no. 5, January 5, 1990); Asturias, Child Protection Act 1/1995, January 27 (BOE, no. 94, April 20, 1995); Canary, Integral Attention to Children Act 1/1997, February 7 (BOE, no. 63, March 14, 1997); Cantabria, Child and Adolescent Protection Act 7/1999, April 28 (BOE, no. 127, May 28, 1999); Castilla-La Mancha, Children Act 3/1999, March 31 (BOE no. 124, May 25, 1999); Castilla León; Cataluña, Attention and Protection of Children and Adolescents Act 8/1995, July 27, 1995 (BOE, no. 207, August 30, 1995); Extremadura, Protection and Attention to Children Act 4/1994, November 10 (BOE, no. 309, December 27, 1994); Galicia, Family, Childhood and Adolescence: Legal, Economic and Social Protection Act 3/1997, June 9 (BOE, no. 165, July 11, 1997); Baleares Islands, Custodianship and Protection of Abandoned Children Act 7/1995, March 21 (BOE, no. 119, May 19, 1995); La Rioja, Children Act 4/1998, of March 18 (BOE, no. 79, of April 2, 1998); Madrid, Guarantees of the Child’s and Adolescent’s Rights Act 6/1995, March 28 (BOE, no. 183, August 2, 1995); Valencian Community, Childhood Act 7/1994, December 5 (BOE, no. 21, of January 25, 1995); Murcia, Childhood Act 3/1995, of March 21 (BOE, no. 86, of April 12, 1995).
110 Given the need of improving the legal regulation of the collaborating entities to which the competent administrations accredit for the delicate function of mediation, a couple of reviews to the respective autonomic norm have been made, following the guidelines developed in the collaboration framework between the Autonomous Communities. This way, we have that by July 2003, the habilitation decrees are: Andalucía, Decree 454/1996 for the Habilitation of Collaborating Institutions of Family Integration and Accreditation of Collaborating Entities of Intercountry Adoption, October 1st (BOJA no. 120, October 19, 1996); Aragon, Decree 16/1997 that regulates the Habilitation of Collaborating Entities of Intercountry Adoption, February 25 (BOA, no. 26, March 5, 1997); Asturias, Decree 5/1998, February 5, Regulations of Collaborating Institutions of Family Integration and Collaborating Entities of Intercountry Adoption (BOPA, no. 41, February 19, 1998); Canaries, Decree 200/1997, which regulates the Qualification of Collaborating Entities of Intercountry Adoption, August 7 (BOC, no. 109, August 20, 1997); Cantabria, Decree 47/1998, on Accreditation and Operation of the Mediation Entities in International Adoption, May 15 (BOC, no. 105, May 27, 1998); Castilla-La Mancha, Decree 35/1997, of Accreditation of the Collaborating Entities of Intercountry Adoption, March 10 (BOCM, no. 11, March 14, 1997); Castilla and Leon, Decree 207/1996, of Qualification of Collaborating Entities of Intercountry Adoption, September 5 (BOCyL, of September 11, 1996); Cataluña, Decree 97/2001, on Accreditation and Operation of the Collaborating Entities on Intercountry Adoption, April 3 (BOGC, no. 3369, April 17, 2001); Extremadura, Decree 55/2002 that modifies Decree 142/1996 of October 1, April 30 (DOE, no. 52, May 7, 2002); Galicia, Decree 42/2000 of Social Assistance which adapts the legislation in force on Family, Childhood, and Adolescence, January 7 (DOG, no. 45, March 6, 2000); Baleares Islands, Decree 187/1996 on Accreditation of Collaborating Entities of Intercountry Adoption, October 11 (BOCAIB, November 14, 1996); Madrid, Decree 262/2001 on Accreditation and Operation of the Collaborating Institutions of Intercountry Adoption, November 22 (BOCM, no. 285, November 30, 2001); Murcia, Decree 487/2002 of February 1st, that modifies decrees 81/1994 of Procedure of Formulation of Proposal, of November 4, and 66/1997 on Accreditation and Performance of Collaborating Institutions on Intercountry Adoption, September 12 (BORM, no. 41, March 18, 2002); Navarra, Forum Decree 168/2002 that rules the Accreditation of the Collaborating Entities on Intercountry Adoption, July 22 (BON, no. 110, September 11, 2002); La Rioja, Decree 29/1997 that rules the Qualification of Collaborating Entities on Intercountry Adoption, May 9, 1997 (BOLR, no. 58, May 15, 1997); Valencian Community, Decree 100/2002 that regulates the Accreditation, Operation and Control of the Mediation Intercountry Adoption Entities and the Record of Requests issued against the Mediation Entities accredited in the Valencian Community, June 4 (DOGV, no. 4271, June 14, 2002); País Vasco, Decree 302/1996 that regulates the Qualification of the Collaborating Entities of Intercountry Adoption, December 24 (BOPV, January 3, 1997).
111 As an interesting point we have Mexico’s case, which through the National DIF (central authority on intercountry adoption) is carrying out a census list of vulnerable children (specialized software) oriented to each of the groups the DIF is to give attention (disabled, sheltered children, adoptions, etc.). With respect to the module called "sheltered children" is already installed as a guide project in the states of Baja California and contains integral information about all the sheltered children in fifty public and private shelters in that State. The information available contained in an electronic individual expedient, of each child, conforming a state database with all the information about the children to which only the authorized people of the DIF have access. As a complement of this database of sheltered children, there is a module of "adoptions" with the information about the adoptable candidates and the adoptants, both national and intercountry. DIF-Nacional’s idea is to install, if the results are positive, the census list in all the country, this way forward the expedients of national and intercountry adoption to those States where there are real possibilities of adopting a child with the characteristics contained in the suitability of the requesters. The census list is considered a tool that facilitates and expedites the adoption processes where there are really adoptable children, placing the expedients only when there are real possibilities of adopting and giving a family to a child who needs it. The purpose would be to build efficient mechanisms to fight situations that cause child institutionalization, therefore, placing adoption expedients, without unnecessary delays, in those States that request so. A census list that determines the child’s origin, without falling into illicit practices, until the child is moved to his or her country of destiny. We shall mention, on the other hand, that there are institutions dedicated, since yers ago, to provide their experience, among other issues, in the qualification of this kind of census list or database. Among them, we find the Intercountry Adoption Congress (IAC). Its website is http://www.iacongress.org. The IAC has obtained license for this information system on the topic of adoptions. It is an organization whose aim is helping the governments of the countries concerned to improve their systems of adoption by providing the necessary technology —specialized software— that allows the authorized personnel having access to information, and after analyzing the characteristics of children and prospective parents, building the most suitable proposal, speeding up the process. Also with a database like the one described, there could be a report that could include information about the allocated, adopted or sheltered children, both in Mexico and in other countries, this way giving a follow-up during the corresponding time; information about adoptions that are beginning, pending, or concluded; a comparison could be made between the results achieved by the different states of the country; or detailed information could be obtained about the situation for example of the different DIFs.
112 Although we do not discard either an intention of channelling the requirements demanded by both States parties, reaching a distributive and not accumulative system. See with this respect, in general, Álvarez González, S., op. cit., note 24, pp. 194 and 195.
113 González Beilfuss, C., "El protocolo de adopción…", cit., note 34, establishes in the article a posture in favor of this protocolized procedure with the Philippines, and it expresses that the displacement of the child to the receiving State previous to the constitution of adoption, or even the fact of developing the pre-adoptive stage in Spain under the supervision of the Spaniard authorities, shall encourage "better conditions to guard and assist the requestors of intercountry adoption in what will be the child’s natural environment". We disagree with this opinion, as it shall be expressed in the subsequent lines.
114 In order to determine the application of the 1993 Convention of the Hague, "it is indifferent that the adoption formalizes in the State of origin or in the receiving State; the relevant thing is for adoption to take the child from one country to the other, either before the adoption or as a consequence of it. The 1993 Convention of The Hague is applied even when the child is to be adopted and the child is taken to another country, but finally, the adoption does not take place". Calvo Caravaca, A. L., "Globalización y adopción…", cit., note 28, p. 49; Carrillo Carrillo, B. L., Adopción internacional…, cit., note 28.
115 We shall state here how praising this actionis, that is, the development of the pre-adoptive phase and the constitution of adoption in Spain, with respect to the "easiness" it entails for the prospective parents to conclude an intercountry adoption from their home, without having to miss their jobs; but we insist on the idea that we are developing here, which begins in the principle of the child’s best interest.
116 Again, although with the expressed hesitations, article 17.c of the 1993 Convention of The Hague establishes that the decision related to allocation shall be a taken by both central authorities of the State of origin and the receiving State, the so-called matching. In fact, the matching sets forth from the relative decision of allocation, which, being a joint decision, shall only occur when there is a convergence of opinions between the central authorities of the two States concerned. Meyer Fabre, N., "La Convention de La Haye…", cit., note 24, pp. 282 and 283, cited by González Beilfuss, C., "El Protocolo de adopción internacional…", cit., note 34. Finding an alternative to a child that in the pre-adoptive stage failed and did not follow the procedure, is a long process, normally based on a list, on an arrival order of requesters waiting to adopt in Philippines. This is difficult because of pressure on space in this particular process; this, without discarding that once the prospective family of the child is found, the alter has to be moved to the Autonomous Community, depending n the residence country of his or her new family option. This long tour is not the best thing for a child who is constantly seeing people he does not identify, know, and that does not even understand because of the language.
117 All this, without mentioning other secondary issues like who shall pay the expenses derived from a pre-adoptive failure, like the plane ticket of the back to his country of origin, his housing during the waiting, etcetera. Appendix C regarding the "Procedure relative to the adoption of a Philippines’ child" we are commenting, in clause 7 expresses that "the prospective adoptive parents shall pay the expenses, taxes, compensations, and exactions derived from the allocation in the pre-adoption stage, according to what the Philippines’ legislation establishes", but it does not mention, incase of an eventual failure, who shall "cover" the expenses; perhaps the Spaniard public administration.
118 We have proposed, in this work, its inclusion in article 4, clause a).